VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P586/2023
Permit Application no.TP-2021-672 	
CATCHWORDS	
Section 79 Planning and Environment Act 1987; Melbourne Planning Scheme; Commercial 1 Zone; Mixed Use Zone; Multi-level, mixed-use development; Flooding.	

Applicant	Laneway Developments Pty Ltd	

Responsible Authority	Melbourne City Council	
Respondent	Melbourne Water Corporation	

SUBJECT LAND	280-286 Macaulay Road & 7/300 Macaulay Road
NORTH MELBOURNE VIC 3051	

HEARING TYPE	Hearing	

DATEs OF HEARING	30 & 31 October and 1 & 2 November 2023	

date of interim orders	3 November 2023 & 17 January 2024	
DATE OF ORDER	12 June 2024	

CITATION	Laneway Developments Pty Ltd v Melbourne CC [2024] VCAT 501	

Order
1	In application P586/2023 the decision of the responsible authority is affirmed.
2	In planning permit application TP-2021-672 no permit is granted.

Bill Sibonis
Senior Member		Peter Cole
Member	

Appearances
For Laneway Developments Pty Ltd	J Cicero, Lawyer of Best Hooper Lawyers.  Evidence was called from:
•	R Swan, Engineer (Flooding and Stormwater) of Hydrology and Risk Consulting	
For Melbourne City Council	C Murphy, Town Planner	
For Melbourne Water Corporation	L Hicks of counsel, instructed by Allans. Evidence was called from:
•	C Lauchlan Arrowsmith, Engineer of Streamology Pty Ltd	

Information
Description of proposal	A multi-level, mixed-use building, plus basement car parking.  The development is to accommodate 253 square metres of retail floor space at ground floor level (two tenancies); 3386 square metres of office floor space at Levels 1 to 4 (18 tenancies); and 43 dwellings at Levels 5 to 11.  A mix of one, two and three-bedroom dwellings is proposed.  Vehicle access to a 70-space basement car park, utilising car stackers, is proposed from a laneway (also referred to as the ‘access lane’) which adjoins the subject land to the east.  Rather than a ramp, two car lifts will transfer vehicles to and from the car parking area.  Pedestrian access is provided from both Macaulay Road and the laneway.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Melbourne Planning Scheme (‘Planning Scheme’)	
Zone and overlays	Commercial 1 Zone (‘C1Z’)
Mixed Use Zone (‘MUZ’)
Design and Development Overlay – Schedule 26, North Melbourne, West Melbourne and Arden-Macaulay Noise Attenuation Area (‘DDO26’)
Design and Development Overlay – Schedule 63, Macaulay Urban Renewal Area, Kensington and North Melbourne (‘DDO63’)	
Permit requirements	Cl. 32.04-2 and 71.03-2 (use of land in MUZ for office)
Cl. 32.04-6 (the construction of two or more dwellings on a lot in MUZ)
Cl. 34.01-1 and 71.03-2 (use of land in C1Z for dwelling)
Cl. 34.01-4 (the construction of a building and the construction or carrying out of works on land in C1Z)
Cl. 43.02-2 (the construction of a building and the construction and carrying out of works on land in DDO26 and DDO63)
Cl. 52.06-3 (reduction of the car parking requirements)	
Key scheme policies and provisions	Cl. 02, 11, 13, 15, 16, 17, 32.04, 34.01, 43.02, 52.06, 58 and 65	
Land description	The subject land is located on the north side of Macaulay Road in North Melbourne, some 157 metres west of Boundary Road.  It comprises two lots with a combined site area of approximately 1265 square metres.  The land supports a part single-storey, part two-storey office building and associated car parking, accessed from an adjoining privately-owned laneway.  The laneway connects to Macaulay Road to the south.  Surrounding properties are developed and used for light industry and warehouses.  The immediately adjoining land to the west has a permit for a food and drink premises.  More broadly, a number of nearby sites are either being developed in the form of multi-level, mixed-use buildings, or have permits to do so.	
Tribunal inspection	A site inspection was undertaken during the hearing.	

  Reasons
What is this proceeding about and what is the relevant background?
1	In October 2021, an application was made to the Melbourne City Council (‘Council’) for a planning permit to construct a 12-storey mixed-use building, plus basement.
2	Notice of the planning application was given and objections were received, including an objection from Melbourne Water Corporation (‘Melbourne Water’).
3	As the Council did not decide the planning application within the prescribed period, the applicant made this application to the Tribunal for a review of the Council’s failure to grant a permit.
4	Subsequently, the Council considered a report prepared by its planning officer which provided an assessment of the planning application.
5	That report recommended that, had this application to the Tribunal not been made, the Council would have determined to issue a Notice of Refusal to Grant a Permit on a number of grounds.
6	Those grounds refer to the interface with the laneway, the failure to provide demonstrable benefit to justify exceeding the preferred maximum building height, built form considerations and amenity.
7	The grounds do not address the flooding considerations raised in Melbourne Water’s objection.  Rather, the officer’s report notes that Melbourne Water is not a determining referral authority, that Melbourne Water is a party to this proceeding and that the applicant had engaged with Melbourne Water, but a satisfactory outcome had not been reached.
Practice Day Hearing
8	A Practice Day Hearing was conducted on 27 July 2023, the purposes of which were:
•	to consider whether to grant leave under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 for Melbourne Water Corporation to be joined as a respondent to this proceeding in circumstances where their statement of grounds was filed out of time (by late payment of the relevant fee on 17 July 2023 when it was due by 4.00pm on 16 June 2023);
•	to consider the applicant's request for the Statement of Grounds of Melbourne Water, amended and filed on 17 July 2023, to be struck out;
•	to give directions about the future conduct of the proceeding.
9	By order dated 28 July 2023, as the outcome of the Practice Day Hearing:
•	Melbourne Water was joined as a party to the proceeding pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
•	Melbourne Water’s Statement of Grounds filed on 16 June 2023 was replaced by the Statement of Grounds filed 17 July 2023, pursuant to section 127 of the VCAT Act.
•	The application to strike out Melbourne Water’s Statement of Grounds was refused.
10	In refusing the applicant’s request to strike out Melbourne Water’s Statement of Grounds, the Tribunal stated:
…
14	Relying primarily on the Tribunal’s decision in Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 119, the applicant submitted that policy can only be considered in the exercise of discretion to the extent that it is relevant, with relevance being determined by the purpose of the control that provides the permit requirement and the purpose of the permit requirement itself. As a general proposition that approach was not disputed by Melbourne Water. The application of the approach in Brunswick Investment (adopted in subsequent other Tribunal decisions) to the present facts is the point of difference between the applicant and Melbourne Water.
15	After considering all the submissions and the relevant provisions of the planning scheme, I am not satisfied at this time that Melbourne Water’s grounds should be struck out because I am not satisfied that consideration of the risk of flooding to the subject land is an irrelevant consideration having regard to the decision guidelines for the Commercial 1 Zone and the Mixed Use Zone.
16	The subject land is partly included in the Commercial 1 Zone. One of the decision guidelines for [sic] relevant to the consideration of use of land within the C1Z includes consideration of the drainage of the land (clause 34.01-8). While accepting flooding risk and drainage is not the same thing, it cannot be reasonably refuted that the flooding risk attributed to land does not have a direct impact on the natural drainage of land and also on the design and adequacy of the any [sic] drainage installations required to manage stormwater, flood water and overland flows on the land post development.
17	Clause 34.01-4 provides that an apartment development must meet the requirements of Clause 58. There is no definition of ‘apartment building’ in clause 73 and no debate about that classification applying to the proposed development occurred before me. Given the description of the development by the applicant as ‘construction of a multi-storey mixed use building for use as dwellings, commercial and retail and a reduction in the statutory car parking requirement’, it is arguable that such a classification may apply.
18	One of the objectives of clause 58.02 – Urban Context is to ensure that the design responds to the features of the site and surrounding area. The decision guidelines for that clause require consideration of an urban context report required to be provided under clause 58.01. Unsurprisingly, an urban context report must include certain site contextual matters including – 
Any other notable feature or characteristic of the site.
19	An urban context report is also required to include an assessment of any environmental features of the land. It is not a long bow to conclude that low lying land subject to flood or inundation from flood events may meet the description of an ‘environmental feature’ or at very least ‘a notable feature or characteristic of the site’.
20	I accept that proposed LSIO does not yet form part of the planning scheme, and although there may still be a question as to the final form of that LSIO, it does form the factual basis for Melbourne Water’s objection to the suitability for the subject land to be developed as proposed. 
21	I also acknowledge that there is currently a proceeding before the Tribunal under s.39 of the Planning and Environment Act 1987 (Vic) that may have a bearing on the timing of the adoption of Amendment C384. Nevertheless, I am required to make a decision on whether to strike out Melbourne Water’s grounds as things stand today.
22	Further, the proposed LISO [sic] forms the factual basis for Melbourne Water submitting that the propensity for the land to be inundated or subject to flood risk is a notable feature or characteristic of the site that has relevance to the design response of the proposed building(s) thus bringing it within the relevant considerations listed in clause 58.
23	For these reasons, I am not satisfied that any flood risk experienced by the subject land is an irrelevant consideration for the assessment of the planning application. 
24	I am not able to ascertain one way or the other on the material before me whether Amendment C384 inclusive of LSIO3 is a seriously entertained amendment to the planning scheme. 
25	Accordingly, I refuse to strike out the Melbourne Water’s grounds.
26	Whether there is any merit in Melbourne Water’s grounds is a matter that will be finally determined at the hearing. My refusal to strike out Melbourne Waters grounds at this time is purely a procedural ruling and not one based on consideration of the merits of the proposal.
Compulsory conference outcomes
11	Compulsory conferences were held on 8 August, 18 September and 19 October 2023.
12	By order dated 20 September 2023, as an outcome of the compulsory conference held on 18 September 2023, the Tribunal ordered the expert witnesses retained by any party to give evidence on flood risk and flood risk management to meet prior to the hearing to narrow any points of difference between them and identify any remaining points of difference.
13	A joint report of the experts was required to be provided to the Tribunal and all parties by 16 October 2023.  The joint report was required to include:
•	the matters agreed and not agreed by the experts;
•	the reasons for any agreement or disagreement; and
•	the facts and assumptions of facts on which the matters of agreement or disagreement are based.
14	A report titled ‘280-288 and 7/300 Macaulay Road, North Melbourne, Conclave of hydrologic experts’ and dated 17/10/2023 (‘Conclave Report’) was provided in response to this order.  Dr Lauchlan Arrowsmith and Mr Swan were the experts in the conclave, which was held on 13 October 2023.  We will refer to the Conclave Report, as relevant, in our reasons.
15	By order dated 23 October 2023, as an outcome of the compulsory conference held on 19 October 2023, amongst procedural orders:
•	The planning application was amended by substituting amended plans identified as A000 to A304 (inclusive), Revision 7, prepared by Invo Design Pty Ltd and dated 4 September 2023 for the application plans.  The substituted plans are the plans which were addressed at the hearing in both submissions and evidence and are the plans on which we have made our decision.
•	With the agreement of the parties, pursuant to section 84AB of the Planning and Environment Act 1987 (Vic) (‘Act’), the hearing was confined to the grounds set out in Melbourne Water’s amended Statement of Grounds filed on 17 July 2023.
Confinement of grounds
16	Having regard to these orders, our consideration of the application is confined to the following, being the grounds contained in Melbourne Water’s Statement of Grounds filed on 17 July 2023:
Melbourne Water seeks to be joined as a party to Proceedings P586/2023 brought under section 79 of the Planning and Environment Act 1987 (Vic). Melbourne Water objects to the grant of Planning Permit No. TP 2021/672 on the following grounds:
1.	The proposed development is inconsistent with Planning Policy Framework relating to floodplain management (Clause 13.03), as it will intensify the impacts of flooding and, specifically, the hazard to life and property.
2	The proposed development does not adequately respond to the strategies relating to natural hazards and climate change (Clause 13.01). The site of the development does not minimise risk to life, health and property, or direct population growth and development to low risk locations.
3	The proposed development is contrary to the purpose of the proposed Land Subject to Inundation Overlay (Clause 44.04), specifically:
•	The development is likely to cause an unacceptable increase in flood risk, which is likely to result in danger to the life, health and safety of the occupants due to flooding of the site, given that it relies on access through floodwaters to and from the site. The proposal also increases the burden on emergency services and the risk to emergency personnel.
•	The development will increase potential for flood damages.
4	The proposed development does not comply with the Guidelines for Development in Flood Affected Areas (DELWP, 2019), specifically the objectives and core criteria relating to flood safety and flood damage.
5	The development is contrary to the Decision Guidelines of Clause 65.01 because it will increase flood hazard associated with the location of the land and its proposed use and development.
17	Based on the submissions, the key issue in this matter is whether there will be an unacceptable flood risk to life and an increased potential for property damage.
18	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered the submissions and evidence, with regard to the relevant policies and provisions of the Planning Scheme, we have determined to affirm the Council’s decision.  Our reasons follow.
what is the relevant planning context?
Zoning
19	The land at 280-286 Macaulay Road is within the C1Z.  In addition to implementing the Municipal Planning Strategy (‘MPS’) and the Planning Policy Framework (‘PPF’), the purpose of the zone is to create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses; and to provide for residential uses at densities complementary to the role and scale of the commercial centre.
20	As detailed in the ‘information’ section of these reasons, a permit is required to use land in the C1Z for a dwelling.  A decision guideline relating the ‘use’ considerations is the drainage of the land.  A decision guideline relating to buildings and works for an apartment development is the objectives, standards and decision guidelines of clause 58.  As noted by the Tribunal in the Practice Day Hearing, clause 58 requires an urban context report which includes any notable features or characteristics of the site.  The Tribunal considered that the floodprone nature of the site and locality is one such feature or characteristic.  The zone purpose and decision guidelines do not include reference to flood-related matters.
21	That part of the subject land at 7/300 Macaulay Road is zoned MUZ.  In addition to implementing the MPS and the PPF, the purpose of this zone includes providing for a range of uses to complement the mixed-use function of the locality; providing for housing at higher densities; and encouraging development that responds to the existing or preferred neighbourhood character of the area.  The provisions and decision guidelines of the MUZ do not address flood-related considerations.
Overlays
22	The provisions of the DDO26 and DDO63 are not relevant to our consideration of Melbourne Water’s grounds.  For completeness, however, we include the following extract from the Council’s submission which outlines the relevant provisions:
45.	The DDO26 seeks the following design objectives: 
To ensure that new, refurbished or converted developments for new residential and other noise sensitive uses constructed in the vicinity of the Laurens Street, North Melbourne Industrial Area and in the vicinity of industrial operations in Arden-Macaulay include appropriate acoustical measures to attenuate noise levels within the building. 
To ensure that land use and development in the vicinity of the Laurens Street, North Melbourne Industrial Area and in the vicinity of industrial operations in Arden-Macaulay does not adversely affect the viability of industry within these areas. 
46.	The DDO63 relates to the Macaulay Urban Renewal Area and seeks the following design objectives: 
To create a compact, high density, predominantly mid-rise, 6 – 12 storey walkable neighbourhood that steps down at the interface with the low scale surrounding established residential neighbourhoods. 
To provide for higher development that delivers identified demonstrable benefits on large sites that do not interface with the low scale surrounding established residential neighbourhoods. 
To create urban streetscapes that are defined by a generally consistent plane of building facades that enclose streets but allow daylight and sunlight to penetrate to the streets and to lower building levels. 
To ensure that built form elements above the street wall are visually recessive and do not contribute to visual bulk. 
To encourage the ground floor of buildings to be designed so that they can be used for a variety of uses over time. 
47.	Area 8 is subject to a preferred maximum building height of 9 storeys and an absolute maximum of 12 storeys. When exceeding the preferred maximum building height a development must demonstrate (among other things) “[e]xceptional quality of design” and “[a] positive contribution to the quality of the public realm”. 
48. The following built form outcome applies to “all areas” in the precinct: 
Where development respond to flood risk by providing ramp structures or other measures flood mitigation measure, high quality urban design outcomes must be provided at the building and public interfaces.
Municipal Planning Strategy
23	The strategic directions for the municipality are detailed at Clause 02.03 of the MPS.  The Growth Area Framework Plan identifies Macaulay as an existing urban renewal area that is to provide a new mix of uses and a higher density of development.  The description of Macaulay is provided at clause 02.03-1:
Macaulay is an area in transition. Historically, an industrial area supporting the city’s economy through manufacturing and production, the profile of business activity in the area has been changing. The Melbourne Metro station project and the proposed North Melbourne Station will lead to major change and urban renewal of the precinct. Important issues include the interface between on-going industrial and residential areas, and the interface between new development and existing residential areas. Sensitive use buffers will play an important role in protecting these uses.
24	The strategic directions related to ‘environmental risks and amenity’ are detailed at clause 02.03-3.  In respect of climate change, this clause states:
The City is one of the most compact, dense and mixed use parts of the metropolitan area with the richest network of public transport services and generous open space reservations. These characteristics have intrinsic characteristics that offer significant potential to drive down energy use, to make the City robust against the predicted impacts of climate change, particularly water scarcity and heatwaves.
Climate change will deliver reduced rainfall, rising sea level, more extreme flooding, intense storms, and heatwaves. The built environment must be designed to moderate and provide protection from these impacts.
In planning for climate change, the Council will:
•	Encourage development that is resilient to heatwaves, water shortages, extreme storm events and sea level rise.
Planning Policy Framework
Clause 13.01 – Climate change impacts
25	The objective of clause 13.01-1S is to minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning.  The related strategies are:
Respond to the risks associated with climate change in planning and management decision making processes.
Identify at risk areas using the best available data and climate change science.
Integrate strategic land use planning with emergency management decision making.
Direct population growth and development to low risk locations.
Develop adaptation response strategies for existing settlements in risk areas to accommodate change over time.
Ensure planning controls allow for risk mitigation and climate change adaptation strategies to be implemented.
Site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.
Clause 13.03 – Floodplains
26	Clause 13.01-1S, floodplain management, has the objective to assist the protection of:
•	Life, property and community infrastructure from flood hazard, including coastal inundation, riverine and overland flows.
•	The natural flood carrying capacity of rivers, streams and floodways.
•	The flood storage function of floodplains and waterways.
•	Floodplain areas of environmental significance or of importance to river, wetland or coastal health.
27	The related strategies are:
Identify land affected by flooding, including land inundated by the 1 in 100 year flood event (1 per cent Annual Exceedance Probability) or as determined by the floodplain management authority in planning schemes.
Avoid intensifying the impact of flooding through inappropriately located use and development.
Plan for the cumulative impacts of use and development on flood behaviour.
Locate emergency and community facilities (including hospitals, ambulance stations, police stations, fire stations, residential aged care facilities, communication facilities, transport facilities, community shelters, child care centres and schools) outside the 1 in 100 year (1 per cent Annual Exceedance Probability) floodplain and, where possible, at levels above the height of the probable maximum flood.
Locate use and development that involve the storage or disposal of environmentally hazardous industrial and agricultural chemicals or wastes and other dangerous goods (including intensive animal industries and sewage treatment plants) outside floodplains unless site design and management is such that potential contact between such substances and floodwaters is prevented, without affecting the flood carrying and flood storage functions of the floodplain.
Ensure land use on floodplains minimises the risk of waterway contamination occurring during floods and floodplains are able to function as temporary storage to moderate peak flows and minimise downstream impacts.
28	A policy guideline is to consider as relevant any floodplain management manual or guideline of policy and practice, or catchment management, river health, wetland or floodplain management strategy adopted by the relevant responsible floodplain management authority.
29	A policy document to consider as relevant is the Victorian Floodplain Management Strategy.
clause 65 – decision guidelines
30	Pursuant to clause 65.01, before deciding on an application, the responsible authority must consider as appropriate (amongst others):
•	The effect on the environment, human health and amenity of the area.
•	The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of land so as to minimise any such hazard.
amendment C384melb
31	Amendment C384melb to the Planning Scheme (‘Amendment’) relevantly proposes to include the subject land and surrounds in Land Subject to Inundation Overlay – Schedule 3 (‘LSIO3’) and establish Melbourne Water as a determining referral authority.
32	The Amendment has been authorised, undergone exhibition and the submissions received were referred to a Panel.
33	The Panel Hearing was held over an eight-day period in October 2022 and the Panel’s report is dated 22 December 2022.
34	An application pursuant to section 39(1) of the Act in respect of the Panel Hearing was made to the Tribunal in February 2023 (‘section 39 application’).
35	The section 39 application alleged a procedural failure by the Panel in the Panel Hearing process, being a denial of natural justice to the applicants in that case.
36	The hearing of the section 39 application was held on 25 May 2023.  The Tribunal’s order is dated 11 August 2023.
37	The Tribunal declared that the section 39 application was lodged outside of the statutory time period; refused to extend the time within which to commence the proceeding; and struck out the application because it was lodged outside of the statutory time period.
38	We were advised that the Tribunal’s decision has been appealed to the Supreme Court with the hearing scheduled to be held in April 2024.  Given this, the Council has not progressed its consideration of the Amendment as it will await the outcome of the appeal.
39	The Amendment and the Panel’s report were referred to in some detail in submissions of the applicant and Melbourne Water and in the evidence of both experts.  We agree that it is of relevance to our consideration of this application.  That being the case, it is useful to set out relevant details of the Amendment as background.
40	In its ‘Overview’, the Panel’s report provides the following ‘brief description of the Amendment:
The Amendment proposes to either update or introduce schedules to the Land Subject to Inundation Overlay and Special Building Overlay to land identified as being prone to riverine flooding and drainage flooding, respectively, thereby triggering the requirement for a planning permit assessment for development in flood-prone areas. 
41	The ‘Subject land’ is described as:
Land identified as being subject to inundation from riverine flooding in the Moonee Ponds Creek and Lower Yarra River waterways, and drainage flooding in the Arden, Macaulay and Moonee Ponds Creek, Elizabeth Street, Fishermans Bend, Hobsons Road and Southbank catchments. 
42	The following extracts from the Executive Summary of the Panel’s report succinctly detail the issues related to the proposed LSIO3 as presented to the Panel, and the Panel’s conclusions regarding these:
The adequacy of the flood modelling for the Lower Yarra River and the Moonee Ponds Creek (which underpin the proposed Schedule 3 to the Land Subject to Inundation Overlay) was the subject of considerable scrutiny. The fundamental criticism of the modelling was it is overly conservative and overestimates the likely flood extent because of its adopted assumptions. 
The Panel has ultimately determined that while the Flood Studies and modelling might be conservative because of the assumptions adopted, it does not mean the proposed overlay schedules are founded on unreliable or inaccurate data. The Panel appreciates the scrutiny the Flood Studies attracted but is cognisant of the need to not lose sight of the importance of the Amendment and the practical realities for Melbourne Water. The Panel, while critical of some elements of the modelling and noting its high level of conservatism, is satisfied the modelling adequately identifies the 1% AEP flood event for translation into the proposed overlay schedules. 
In coming to its conclusion, the Panel has had specific regard to: 
•	the Amendment does not set flood levels for any parcel of land – Melbourne Water will assess the relevant flood level when a planning permit is sought under the proposed overlay schedules 
•	the proposed overlay schedules provide the trigger for the assessment of a relevant flood level 
•	without the proposed overlay schedules land could be developed in a way that is inconsistent with the safety and protection of life and property. 
•	application of the overlay schedules to land notifies landowners or purchasers an assessment of flood risk will be required for any proposed development of their land. 
The application of the conservative assumptions means that some properties may be ’caught’ and subjected to the proposed controls unnecessarily. This goes against State policy which does not require land outside the 1% AEP flood event area to be identified and trigger the proposed flood overlay schedules. 
However, the Panel considers the conservatism adopted in the technical work which underpins the Amendment does not justify a recommendation that the proposed overlays be abandoned or deferred until a new study is prepared, or the modelling is re-run and updated. To not support the proposed controls would leave substantial areas in the Lower Yarra River and the Moonee Ponds Creek precincts without acceptable flood risk controls. This would not be an ideal outcome, nor would it achieve the outcome sought by the Amendment.
43	The Panel recommended that the Amendment be adopted as exhibited, subject to selected changes.  These include modifications to the proposed LSIO3, specifically to the:
•	‘Land subject to inundation objectives to be achieved’;
•	Application requirements; and
•	Decision guidelines, including deletion of the ‘Guidelines for Development in Flood Affected Areas’ (Department of Environment, Land, Water and Planning, 2019) as a decision guideline to be considered, as appropriate, in addition to those at clause 44.04 and elsewhere in the Planning Scheme.  The basis for this specific change is that it is a background document and the Panel found that a decision guideline should not reference a background document.
44	In respect of the weight to be given to the Amendment, the applicant submitted:
20.	The Panel Report for C384 has not been considered by Council, nor adopted by Council and accordingly, has not been submitted to the Minister.  Section 60(1A)(h) of the PE Act requires adoption of a planning scheme amendment as a condition precedent to it being a relevant consideration under the Act.
21.	Nevertheless, while C384 may be regarded as “seriously entertained”, the Panel Report made a number of recommendations to amend the exhibited version of C384.  The eventual form of the proposed LSIO3, if ever gazetted, is far from certain and it is submitted that the proposed LSIO3 be given little weight.
22.	The Tribunal will be aware that it must apply the Planning Scheme in this proceeding as it currently stands.  Moreover, the Planning Scheme cannot be applied in a manner than speculates as to future conditions, that may or may not eventuate, in say the year 2100.
45	Melbourne Water submitted that the Amendment is a seriously entertained planning proposal and that the modified wording recommended by the Panel (including omitting built form controls and rewording of protection of life criteria) does not alter the weight the Amendment should be given as being ‘seriously entertained’.  Melbourne Water advised that it has no issue with the changes recommended by the Panel and considers them to be ‘entirely appropriate and acceptable’.
46	Consistent with the positions of the applicant and Melbourne Water, we accept that the Amendment can be considered to be seriously entertained.  The Amendment is relevant to our consideration of the proposal, although the weight which can be given to it is tempered by the fact that the Panel’s processes are the subject of a Supreme Court appeal, and the Council as the planning authority has neither considered the Panel report nor adopted the Amendment.
what was the outcome of the expert witness conclave?
47	In accordance with the Tribunal’s order dated 20 September 2023, Dr Lauchlan Arrowsmith and Mr Swan held a conclave on 13 October 2023.  The report arising from the conclave (‘conclave report’) is dated 17 October 2023 and details the following ‘points of agreement’:
•	There is an existing flood hazard and future flood hazard at the property, and along both Macaulay Road and the access road.
•	The extent and severity of the flood hazard at the property, and along access routes varies according to the different flood scenarios.
•	Flood hazard becomes a risk when flood waters enter a property (damage) or when a person enters flood waters (life).
•	In the absence of a riverine flood, a 1% AEP coastal storm tide event does not cause direct flooding in the precinct. However, under future sea level rise conditions, higher tidal water levels may affect the ability of the drainage system to drain stormwater from the catchment and increase the water level of a riverine flood event.
•	Under the 1% AEP 2100 CC pumps fail scenario adopted by Melbourne Water, the habitable floor levels of the building are at the NFPL specified by Melbourne Water and are therefore not subject to flooding.
•	Some non-habitable areas within the building are subject to flooding under this scenario.
•	The proposal has implemented structural measures to minimise flood damage, e.g., setting of habitable floor levels, entry to the car lift, all openings to the basement being above the NFPL.
•	The residual risk under the scenario noted above, associated with flood damage to the flood affects [sic] areas of the building can be managed to an acceptable level through resilient design.
•	Of these areas, the flood depth in the visitor cycling space and the vehicle entry exceed the flood depth safety criterion for children and small vehicles.
•	Flood depths for the scenario noted above, which was adopted by Melbourne Water for the C384 amendment, exceed these safety criteria for a distance of approximately 60 metres along the proposed evacuation route.
•	For this flood scenario, the proposed development has included all relevant measures both structural and non-structural to minimise flood damage and risks to life that are implementable at a property scale.
•	There remains residual risk to life for this scenario which is above the safety criterion for children and small vehicles at the vehicle access (which is the proposed emergency access/egress for the building), along Macaulay Road and adjacent sections of the access lane, and along sections of the proposed flood evacuation route.
•	Application of the safety thresholds as specified within the DELWP Guidelines against flood levels modelled for the 1% AEP CC Scenario indicate large areas of the Arden and Macaulay Precincts exceed the thresholds. The guidelines do allow floodplain managers to account for local issues in their determinations.
•	Further reduction in residual risk at the site would need to be completed at a precinct or larger scale. This could include structural measures such as flood mitigation works or non-structural measures like changes to emergency warning and management arrangements where acceptable to the floodplain manager and/or relevant Agency in control.
•	Under the Working Drainage Strategy flood modelling (Arden Macaulay Precinct Flood Management Strategy, Engeny, 2021), the evacuation access through the garage and onto the access lane of the development meets the DELWP Guidelines safety requirements with regards to children for both the pumps working and pump failure cases but does exceed the threshold value for small vehicles over a short distance.
48	While a point of disagreement was the flood level adopted for the 1% AEP Climate Change no flood mitigation works flood scenario, as clarified at the hearing this was not pursued by the applicant.  The key area of disagreement between the experts relates to evacuation and emergency plans as contained in a proposed Flood Risk Management Plan (‘FRMP’).  The proposed primary emergency response in this instance is ‘shelter in place’.  We will address this issue in the following sections of these reasons but will provide a brief summary of the witnesses’ disagreement for context.
49	Dr Lauchlan Arrowsmith noted that the City of Melbourne Local Flood Guide (North Melbourne and Kensington) (‘Local Flood Guide’) does not specify either evacuation or shelter in place as the agreed flood response for the North Melbourne and Kensington areas.  She further noted that evacuation is mentioned under Major Flood Warnings however no flood warning system is available for this catchment.
50	Mr Swan observed that neither the Local Flood Guide nor the Municipal Flood Emergency Plan envisage evacuation as the management response to flooding in this area.  Both documents refer to staying in place and not entering floodwaters.  While both documents refer to evacuation in a Major Flood event, this is relevant to the Maribyrnong River flooding, which does not impact North Melbourne.  Mr Swan agreed with Dr Lauchlan Arrowsmith that there is no flood warning on the Moonee Ponds Creek.  Mr Swan noted that the Local Flood Guide advises that persons should seek shelter indoors away from flooding and ‘Flood water is dangerous.  Never enter floodwater’.  He noted that with respect to the design flood event, there is no warning time and both the Local Flood Guide and the Municipal Flood Emergency Plan indicate the area is subject to flash flooding.  Mr Swan stated the proposed FRMP would be consistent with the Local Flood Guide.
what is the nature of the design flood and is it appropriate?
51	The experts agreed that there is an existing flood hazard and future flood hazard at the property and the access lane.
52	For the current climate conditions and existing precinct-wide drainage system, Mr Swan stated that the 1% AEP flood level is 2.75m AHD.  This is 0.55m higher than the access lane at the garage entry, which has a surface level of 2.20m AHD.
53	This is not disputed by the parties or by either expert.
54	Melbourne Water advised the applicant that the 1% AEP flood level under current climate conditions is 2.81m AHD and RL3.27m AHD under 2100 climate conditions.
55	We note the 0.06m level discrepancy in the existing 1% AEP flood levels reported by Melbourne Water and Mr Swan.  As the difference is insignificant, for expedience we adopt Mr Swan’s evidence.
56	Dr Lauchlan Arrowsmith stated that the flood modelling and mapping used to define the extent, depth, velocity and duration of flooding at the subject land was based on the Arden Macaulay Precinct and Moonee Ponds Creek Flood Modelling study and subsequent Arden Macaulay Precinct Flood Management Strategy (‘Flood Management Strategy’).  The design flood level reflects the year 2100, 1% AEP scenario with no precinct-wide flood mitigation works undertaken and incorporates climate change factors.
57	According to the evidence, the nature of the event is a flash flood for which warning will not be available.  The experts agree that the design flood will last for a period of seven to eight hours, with its depth somewhere near its maximum for this duration.
58	The experts agree that floodwaters will be still.  That is, they will not flow to any degree, only rise and fall.
59	As noted above, the experts did not agree in the applicability of the design flood level advised by Melbourne Water.  Although this was not pursued by the applicant, the degree of conservatism regarding the design flood level carries weight in our consideration of the Guidelines for Development in Flood Affected Areas (‘DELWP Guidelines’), which we address later in these reasons.
60	The Amendment Panel report concluded that while the flood studies might be conservative because of the assumptions adopted, it does not mean that the proposed LSIO3 is founded on unreliable or inaccurate data.  The Panel also had regard to the fact that the Amendment does not set flood levels for any land and that Melbourne Water will assess the relevant flood level when a planning permit is sought.
61	In the conclave report individual perspectives, Dr Lauchlan Arrowsmith stated:
The modelling scenario adopted to assess this proposal is the best available estimate of a 1% AEP flood events for this catchment. There are a range of assumptions that underly the modelling used to derive the 1% AEP 2100 CC scenario for this catchment, including the influence of elevated coastal water levels, riverine floods, and local stormwater flows. The assumptions adopted in the modelling are conservative as indicated in the discussions of the various hydrologic experts for Amendment C384.
62	In her evidence in reply, Dr Lauchlan Arrowsmith stated:
The 1% AEP 2100 CC pumps fail scenario was adopted for Amendment C384 and in the absence of further modelling or refinement of the work, the flood depths and extents from this scenario are an acceptable benchmark for assessing development applications within the Arden Macaulay Precincts.
63	In the conclave report individual perspectives, Mr Swan stated:
The modelling scenario adopted for the C384 amendment is unlikely to be equivalent to a 1% AEP flood event at 2100, due to the assumptions made in the model. Ms Arrowsmith indicated that she had not been instructed to undertake any review of the assumptions made in the C384 modelling and that she would have preferred additional models runs to be completed to understand the actual flood risk. I do not agree that the modelling can be considered the best available information for a 1% AEP flood at 2100, for a range of reasons: 
•	it has not undertaken any joint probability assessment as per ARR2019. It is unclear if the modelling even represents a 1% AEP flood event, based on the analysis provided in Coombes. 
•	The modelling assumes concurrent peaks in the Moonee Ponds Creek and the local stormwater network, a concurrent peak from the 10% AEP sea level condition and failure of the pump network. This combination of events has to occur simultaneously, on the same day and in the same two hour window for the assumption to be correct. 
•	The model and its underlying hydrological assumptions are not calibrated to real flood events, that have occurred in the precinct in recent years. 
This is not to say that the model is not reflecting a flood condition that is representative of the inputs applied, however it is the specific combination of those inputs that means there can be no certainty that the flood levels are at all representative of a 1% AEP flood. At best, the modelling provides an upper limit to the expected 1% AEP.
64	Further, Mr Swan said:
.. it was noted that the future 2100 C384 modelled flood levels are subject to a range of uncertainties but have been considered by Melbourne Water as certain to occur.
65	We acknowledge that, in coming to its conclusion that the modelling adequately identifies the 1% AEP flood event for translation in the proposed overlay schedules, the Amendment Panel had specific regard to:
•	The Amendment does not set flood levels for any parcel of land – Melbourne Water will assess the relevant flood level when a planning permit is sought under the proposed overlay schedules.
66	From the expert evidence and the Amendment Panel report, we are persuaded that the year 2100 design flood level advised by Melbourne Water is conservatively high due to a number of co-incident storm and tidal events occurring and climate change effects occurring as predicted.
67	An alternative design flood level was not presented as evidence and as such no quantum can be attributed as to how conservative the advised design flood level is.  On this basis, we accept the advised design flood level.
68	A Practice Day Hearing was conducted on 3 April 2024, the purpose of which was:
to consider the future conduct of the proceeding in order to allow the opportunity for the parties to provide submissions and, if appropriate, call evidence addressing the relevance or otherwise to the Tribunal’s consideration of the application, of any flood risk to life in 1% AEP storm events for the ‘no mitigation works, pumps fail, climate change’ scenario for time horizons between 2030 and 2100.
69	The applicant submitted that the information was not presently available.  It submitted that the 1% AEP flood level would not be worse before the year 2100 than the modelled 2100 case.  The applicant submitted that the Tribunal should proceed on the basis that the design year 2100 1% AEP flood level is the worst case and can be adopted as the design flood for the entire time horizon.
70	Melbourne Water agreed that the information would need to be sourced.  It submitted that the 1% AEP design flood is unsafe now and would progressively worsen approaching the year 2100 as a result of climate change.
71	The Council did not make a submission.
72	On the basis of the submissions, and in the absence of a contradictor (or submissions/evidence to the contrary) the only course open to us in these circumstances is to adopt the year 2100 1% AEP design flood for the period from when the building is occupied to year 2100, acknowledging that this is a conservative approach.  The year 2100 1% AEP design flood incorporates climate change factors which are yet to materialise but are predicted to do so progressively over this time horizon.
73	We recognise the definition of a 1% AEP flood event being the 1% likelihood of that event occurring in any given year.  The theoretical likelihood of the adopted year 1% AEP design flood event occurring multiple times from building occupation to year 2100 is therefore increased.
will localised flood mitigation works within the locality be undertaken?
74	The design flood level assumes that no localised flood mitigation works will be undertaken prior to the occurrence of the design event.
75	Melbourne Water acknowledges the need to remedy precinct-wide flood issues.  It commissioned the Flood Management Strategy to identify what flood mitigation works are required.  The Flood Management Strategy states:
Overall, the severity of flooding predicted by the flood modelling is not compatible with development for large areas of the Arden Macaulay Precinct. In the 1% AEP event for the year 2100 scenario, which is the adopted design standard, the predicted flooding is likely to pose an unacceptable risk to the safety of the community and lead to extensive property damage. If the Arden Macaulay Precinct is to develop into a high-use urban area, drainage works will need to be implemented to manage the risk of flooding.
76	Mr Swan’s evidence statement notes:
Indeed, the Arden Macaulay redevelopment is specifically identified as a strategic priority in Melbourne Water’s 2017/2018 to 2021/22 Corporate Plan, including acknowledgement that the flood risk must be mitigated to meet the vision for the precinct. The orderly planning associated with C407, including the consideration of flood risk, in my view means that the requirements for planning for future flood risk are properly considered in the planning scheme. Melbourne Water did not indicate that there was any need to rezone areas due to flood risk as part of the amendment.
77	We note that the ‘Melbourne Water Corporate Plan 2017/18 to 2021/22’ states the following in respect of the Arden-Macaulay redevelopment:
Flooding is a significant issue that must be resolved if the Victorian Government is to realise its vision for the precinct.  Around 300 properties across 45 hectares are currently exposed to serious flooding where the depth is greater than 500mm for longer than two hours.  This is predicted to worsen with climate change and further upstream infill development.
Melbourne Water, in partnership with the Victorian Planning Authority, the City of Melbourne and other members of the Arden Macaulay Inter-Departmental Committee, has developed a Flood Mitigation Strategy as the first element of a water sensitive strategy for the precinct.
78	We note that the ‘Melbourne Water Corporate Plan 2023/24 to 2027/28’ states:
Development of the catchment-scale integrated water management (CSIWM) action plans is currently in progress.  These plans are intended to provide an agreed list of prioritised actions, with timeframes, aimed at delivering on the strategic outcomes and enablers for integrated water management (IWM).
The CSIWM plans and action plans refer to projects that will drive the change towards the shared vision.  Melbourne Water is playing a leading role in delivering the following (amongst others):
•	multi-benefit flood mitigation and open space within the Arden-Macaulay area undergoing significant urban renewal over the next 30 years
79	According to Melbourne Water the design of the flood mitigation works is currently at concept level.  Dr Lauchlan Arrowsmith’s evidence is that the works are intended to be funded through Melbourne Water’s Urban Renewal Cost Recovery Scheme (‘URCRS’), but it is not currently in place.
80	Mr Swan’s evidence is that:
The URCRS funds the flood and drainage infrastructure in the precinct to safely manage the risk of future flooding of the precinct.
In my view, this indicates that there is a high likelihood of the proposed works occurring and they can be considered as a realistic and plausible outcome, as they are required to meet the strategic planning needs of the precinct
81	Draft Melbourne Planning Scheme Amendment C407melb (‘Draft Amendment’) proposes to implement the Arden Structure Plan 2021.  One of the threshold issues identified is the delivery of flood mitigation works.  In the Executive Summary, the Advisory Committee Report for the Draft Amendment states:
More than a planning project
The urban renewal of Arden requires more than just planning scheme changes. The State Government will need to take a hands-on role to deliver the vision for the precinct, not just because of the amount of government land involved but because of the need to deliver significant drainage infrastructure.
Delivery of the drainage works will require the relocation of the Citywide depot which includes an asphalt plant. This should be progressed as a matter of priority.
The cost of delivering the drainage infrastructure is significant. Some works and land acquisition for a combined retarding basin and open space (an Integrated Stormwater Management and Open Space) will be funded as part of a Development Contributions Plan (DCP) but works will also be funded by a separate Urban Renewal Cost Recovery Scheme process. The DCP is not anticipated to raise the full cost of the works it funds. The State has committed to bearing the risk of additional costs in delivering the necessary infrastructure.
The expert conclave report on drainage raised a number of issues that suggest that while the drainage strategy could deliver an appropriate planning outcome, it might not be the optimal solution to mitigation of the flooding risk. Given the complexity of these issues the VPA might wish to review the drainage strategy in the light of the additional expert analysis.
82	Should the flood mitigation works be implemented and the pumps fail, Mr Swan indicated that the 2100 1% AEP flood level will be RL2.61m AHD, some 0.14 metres lower than the present day 1% AEP flood level.  This design flood level corresponds to a flood depth of 0.41m on the north side of the garage entry at the laneway.  The experts agreed in the conclave report that this scenario meets the DELWP Guidelines safety requirements with regard to children but exceeds the threshold value for small vehicles over a short distance.
83	On the evidence provided, the climate change assumptions that inform the design flood level are unlikely to be realised for several decades, noting that it has been adopted.  Melbourne Water’s recognised need for drainage mitigation works is in a much shorter timeframe.  We consider it reasonable to expect the flood mitigation works will be undertaken prior to the realisation of the climate change assumptions inherent in the design flood level advice, and given Macaulay is an identified urban renewal area in the Planning Scheme.
84	However, given the works are not detailed in the Amendment, the URCRS funding model has not been established, the design of the mitigation works is only at concept level and no evidence has been provided to the contrary, consideration needs to be given to a scenario where the localised drainage mitigation works are not undertaken within the intervening period to year 2100.  We consider this in the following section of these reasons.
what are the relevant flood safety assessment criteria?
85	Melbourne Water utilises the DELWP Guidelines in the assessment of applications for land affected by overland flows associated with Melbourne Water’s drainage system.  Its submission states that the DELWP Guidelines are an adopted policy of the Department of Energy, Environment and Climate Action.  Melbourne Water further submitted that the DELWP Guidelines ‘are the primary tool it uses to assist in forming its views in applying the provisions of the Planning Scheme’s decision guidelines and purposes and quantitatively assessing flood risk and development responses’.
86	Clause 13.03-1S includes the following policy guideline:
Any floodplain management manual or guideline of policy or practice, or catchment, river health, wetland or floodplain management strategy adopted by the relevant responsible floodplain management authority.
87	Melbourne Water and the applicant agree that the DELWP Guidelines are a relevant guideline or consideration pursuant to section 60(1A)(g) of the Act.  Pursuant to that provision, before deciding on an application, the responsible authority, if the circumstances appear to require, may consider ‘any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council’.
88	The applicant’s submission is that the DELWP Guidelines provide an assessment framework and method to assist decisions on development in flood-affected areas but are not mandatory and consideration should be given to the local circumstances, the nature of the development proposal and the flood risk.
89	It was further submitted by the applicant that the assessment framework in the DELWP Guidelines does not displace policy at clauses 13.01 and 13.03.  Particular reference was made to the words ‘assist’ and minimise’ in policy, with a submission that these cannot be displaced by the DELWP Guidelines.
90	We agree with the submissions that the DELWP Guidelines are relevant to our consideration of the proposal and note that they are referenced in the evidence of both witnesses.
91	The assessment of development proposals is addressed at Part 3 of the DELWP Guidelines, where four key objectives for floodplain managers are provided against which to assess proposed developments.  Melbourne Water submitted that the following two objectives are relevant to the assessment of the proposal:
Objective 1 – Safety
Protect human life and health and provide safety from flood hazard.
•	Applies to all development proposals
•	Proposals that are unable to meet the safety criteria which be rejected
Objective 2 – Flood damage
Minimise flood damage to property and associated infrastructure.
•	Applies to building proposals
•	The objective is usually satisfied by setting floor level requirements as a condition of permit.
92	In addressing flood safety, the guiding principle of the DELWP Guidelines is that developments meet the depth and flow requirements in Tables 1, 2 and 3.  We consider that these criteria should be read together.
93	The DELWP Guidelines provide safety requirements that are based on three categories:
•	Building stability for residential development and other lightly constructed buildings.
•	The safety of small children evacuating on foot.
•	The stability of small cars being driven through floodwater.
94	Tables 1 and 3 are relevant to the development and are reproduced, in part, below:

95	With regard to Table 3, as the proposed development falls part within the accommodation and non-accommodation buildings, we consider the pertinent threshold safety criteria are for ‘Industrial building, office, place of assembly, retail building or warehouse’ as follows:
•	a maximum flood depth of 0.5 metres.
•	a maximum velocity of 2.0 metres/second.
•	a maximum velocity depth product of 0.4 metres squared/second.
96	The above threshold safety criteria are read together with the thresholds for safety of children, small cars and light buildings in Table 1.  Accordingly, it is read that the above maximum flood depth and maximum velocity depth product relate to the safety of children and also to small cars.
97	The DELWP Guidelines say that the Table 1 thresholds do not apply to vulnerable community members such as infants, very young children, the mentally or physically incapacitated, incarcerated and the elderly.
98	The DELWP Guidelines say that the key principles for development are to keep the flood risk to people (including emergency services personnel) to acceptable safety thresholds as per the latest updated Australian Rainfall and Runoff Guidelines (‘ARR’).
99	We note that the threshold criteria contained in ARR differ somewhat from the DELWP Guidelines.  It groups the elderly with children and vehicles (not small vehicles) in Hazard Classification H3 and states the lower bound limits for this classification as:
•	maximum flood depth of 0.5 metres;
•	maximum velocity of 2.0 metres/second; and
•	maximum velocity depth product of 0.6 metres squared/second.
100	ARR says that the above thresholds do not apply to infants, very young children, frail/older persons or the physically and/or mentally disabled.
101	Mr Swan states that the safe wading depth in slow-flowing water for adults is 1.2 metres.  In the conclave points of agreement, it is inferred that the design flood depth is lower than the threshold safety criteria for adults.  The DELWP Guidelines are silent on the threshold depth criteria for adults.  We note that the maximum stability limit for adults under good conditions in ARR is 1.2 metres.  This accords with Mr Swan’s evidence.
102	We accept the evidence that the appropriate criteria are those stated at paragraphs 95 and 101.
103	We accept the definition of vulnerable community members contained in the DELWP Guidelines.
does the current climate conditions 1% AEP flood meet the flood safety assessment criteria?
104	For the current climate conditions 1% AEP flood, the depth of floodwaters will be 0.55 metres adjacent to the garage entry at the laneway, with zero velocity as noted in paragraphs 52 and 58 above.  This marginally exceeds the adopted threshold depth criteria.  The maximum velocity criteria and the maximum velocity depth product criteria are met.  Accordingly, the development fails to meet the appropriate flood hazard safety criteria thresholds, specifically, the threshold depth for child safety and small vehicles under current climate conditions.
Does the design flood meet the flood safety assessment criteria?
105	For the year 2100 1% AEP design flood, the depth of floodwaters will be 1.07 metres adjacent to the garage entry at the laneway, with zero velocity as noted above.  This exceeds the threshold depth criteria.  The maximum velocity criteria and the maximum velocity depth product criteria are met.  Accordingly, the development fails to meet the appropriate flood hazard safety criteria thresholds, specifically, the threshold depth for child safety and small vehicles.
106	We accept Mr Swan’s evidence that the proposed evacuation route from the building in the event of a flood is provided through water depths below safe wading depth for adults.  That is, based on the specific criteria for adults in ARR, it is sufficiently safe for adults to use the proposed evacuation route.
107	Should appropriate flood mitigation works be implemented and the pumps fail, Mr Swan’s evidence states the design flood level is RL2.61m AHD as noted above.  The corresponding flood depth is 0.41 metres on the north side of the garage entry at the laneway.  This depth is less than the threshold hazard safety criteria depth for child safety but exceeds the depth for small vehicles noted above.
What is the flood risk?
108	Mr Swan considers that flood hazard is specifically not analogous to flood risk or population at risk.  The flood hazard at the site increases as a result of the flooding associated with the assumed modelled conditions compared to the existing modelled conditions, not as a result of the development.
109	This view is supported by the Australian Disaster Resilience Handbook 7, 2017, Managing the floodplain: a guide to best practice in flood risk management in Australia (‘FRM Handbook’) which states:
Flood risk is the combination of the likelihood of occurrence of a flood event and the consequences of that event when it occurs.  It is the human interaction with a flood that results in a flood risk to the community.
110	This view also is supported by the DELWP Guidelines and by the expert conclave which agreed that the flood hazard becomes a risk when floodwaters enter a property (damage) or when a person enters floodwaters (life).
111	We acknowledge and agree with the definition of flood risk provided by Mr Swan and agreed at the conclave.
112	The parties agree that the Planning Scheme seeks to minimise, rather than eliminate, flood risk as a result of climate change.
113	The FRM Handbook asks flood managers to consider three types of risk, being existing flood risk, future flood risk and residual flood risk.  Based on the submissions and evidence, this proceeding is concerned with residual flood risk as a result of the development proposal.  It defines residual risk as:
the risk a community is exposed to that is not being remedied through established risk treatment processes
114	More relevant to this proceeding, it also says:
this is the risk remaining … after management measures such as works, land-use planning and development controls are implemented.
115	Dr Lauchlan Arrowsmith provided the following definition of residual risk:
… relates to the risk to life that remains once all feasible structural and non-structural mitigation measures have been applied
116	We agree with Dr Lauchlan Arrowsmith’s definition of residual risk to life.
117	No quantum of acceptable level of residual risk to life was provided by the parties or has been identified in any of the reference documents.  The FRM Handbook makes reference that the residual risk must be ‘acceptable to the community’.
will there be an unacceptable flood risk to life?
118	The applicant seeks to manage the population at risk by removing them from exposure to the flood hazard through elevating the building’s habitable floors above the design flood level with 600mm freeboard and mitigating risks due to human behaviour by the implementation of a FRMP.
119	The draft FRMP provided by Mr Swan includes a Flood Action List.  It describes what actions the Responsible Person needs to ensure for a range of alert triggers, ranging from Level 1 (flood water at 1.65m AHD) to Level 3 (flood water at 2.80m AHD).  For alert trigger level 3, where flood depth is 0.6 metre above ground level at the garage entrance at the access lane, the actions are:
Responsible Person to ensure that: 
•	Occupants and managers of each commercial tenancy in the building are strongly advised take the following actions:
•	Do not enter flood waters.
•	Stay on the ground floor or higher level until flood waters subside.
•	Avoid entering the garage or underground carparking [sic].
•	Avoid leaving the building unless there is an emergency and evacuation is directed by emergency services. In this case, evacuation should be via the garage.
•	Monitor warnings provided by the Bureau of Meteorology or SES provided via the VicEmergency app, Bureau of Meteorology website, VicSES website or other means.
•	Communicate warnings and advice provided by the Bureau of Meteorology or SES to people in the building.
•	If an emergency arises, ambulances or SES should be advised to enter from the north of the Property via the road from the north and into the garage if traveling by motor vehicle.
•	Switch off the basement car lift.
•	Switch off the Electric Vehicle Charger and arrange for the vehicle in the charging station to be relocated to the basement garage.
The manager or delegate of each commercial tenancy to:
•	Strongly advise employees on the Property take the following actions:
•	Do not enter flood waters.
•	Stay in place on the ground floor or higher.
•	Avoid entering the garage or underground carparking [sic].
•	Avoid evacuation unless there is an emergency.
•	Advise employees not on the Property to not come to work.
120	Mr Swan summarises the FRMP as ‘stay in place until flood waters recede’. 
121	The applicant submitted that the building population is expected to be approximately 70 residents in 43 apartments and 390 office/retail workers in two retail and 18 office tenancies – a total of 460 persons.
122	Melbourne Water submitted that the applicant places great reliance on shelter in place.  Melbourne Water submitted that this is an unacceptable outcome.
123	The applicant’s proposed evacuation route is from the garage entry heading north along the laneway for approximately 20 metres, then heading east for approximately 50 metres, then heading north for approximately 105 metres to Mark Street.
124	The parties agree that for the design flood event, the flood along the evacuation route will exceed the threshold depth of 0.5 metre for child safety for a length of approximately 60 metres.  The flood depth gradually decreases as a person traverses along the route.
125	We accept Mr Swan’s evidence discussed at paragraph 101 that the proposed evacuation route from the building in the event of the design flood is provided through water depths below the maximum threshold wading depth for adults.  That is, based on the specific hazard criteria for adults, it is sufficiently safe for adults to use the proposed evacuation route.
126	The parties agree that the evacuation route is comprised of a number of easements which in part provide carriageway rights for the subject land but these rights, however, do not extend through to Mark Street.  Carriageway rights through to Mark Street exist for other properties (including 270 Macaulay Road, directly opposite the subject land, on the east side of the laneway) which means that the evacuation route cannot be gated or fenced to obstruct or restrict access to Mark Street.  This is agreed by the parties.
127	Dr Lauchlan Arrowsmith noted that along the proposed route there are several manhole grates which will be subject to surcharging and could lift or displace during flood events which would be hazardous to people walking through the floodwaters.  During the site visit, we observed grated and solid manhole covers along the route.  We agree that their displacement during a flood event may occur, creating trip hazards and unprotected pits may create fall hazards.  However, there are relatively few and given the still water flood conditions agreed by the experts, this circumstance is considered to not significantly increase the risk to users of the evacuation route.
128	The DELWP Guidelines require the flood risk to emergency services to be kept to acceptable safety thresholds and to minimise demands on them.
129	Melbourne Water contends that the proposal increases the burden on emergency services and the risk to emergency services personnel.  Dr Lauchlan Arrowsmith considers that during the design flood, it will be hazardous for emergency services to safely access the site.
130	The threshold analysis above concluded that the design flood is shallower than the threshold for adults.  Accordingly, we do not agree that there is a significant flood risk to emergency services personnel, on the basis that they are typically (if not exclusively) adults, trained to manage this risk.
131	Mr Swan’s view is that in a densely populated area such as North Melbourne, there is a relatively limited additional burden on emergency services in the event of the 1% AEP Flood.
132	We agree with Mr Swan, noting that Melbourne Water acknowledge that in the design flood event, there is currently a precinct-wide flood issue that emergency services would be in attendance of in any case.  In a successful shelter in place scenario, where emergency rescues or evacuations may be required, it is reasonable to expect that these would not be significant.  We give little weight to Melbourne Water’s contention.
133	Melbourne Water submitted that the risk of floating debris such as parked vehicles and bins in the vicinity of the laneway could create additional hazards should people elect to use the evacuation route during the design flood.  It was acknowledged by Melbourne Water, however, that this is mitigated by still water and, accordingly, debris and vehicles should not be in motion.
134	Although the threshold depth for small vehicles is exceed (DELWP Guidelines Table 1), the evidence indicates that Macaulay Road will be impassable in any event in the vicinity of the site.  Further, the FRMP indicates that the basement car lift will be switched off.  Accordingly, vehicles will not be able to leave the building.  We find that these circumstances mitigate the risk to small cars even though the hazard remains.
135	In consideration of the local circumstances, we find that the flood hazard remains above threshold safety criteria for children and vulnerable community members as defined in paragraph 95.
136	With regard to the FRMP, Melbourne Water submitted that the FRMP raises a number of questions about its practical and ongoing implementation.  It says the implementation of the FRMP is particularly problematic in cases such as this where there are multiple tenancies.  It says the following factors were identified in the Tribunal’s decision in Tivoli House SY Pty Ltd v Stonnington CC (‘Tivoli’) and are even more relevant here given the number and variety of proposed uses: 
•	exchange of owners, the flood barriers and flood mitigation arrangements are often not maintained and no one has the responsibility to ensure compliance, leading to failures [sic].
•	The surrounding roads are also impacted by the 1% AEP storm event at depths that impact the ability to rescue people, further straining the already stretched emergency sector, primarily the VICSES volunteers. This is noting that the flooding includes greater that [sic] 150 millimetres, a depth that can float a car.
•	Shelter in place is never the preference as something may happen and rescue and relocation will be required. The preference is always to evacuate as you never know the extent of a flood and 20 minutes could turn into 6 hours and 400 millimetres could turn into 800 millimetres.  
•	The FRMP has issues such as who is responsible to ensure everybody in the building is aware of the FRMP and who is updating it and who is ensuring every new occupant is aware.
•	The FRMP has lots of actions to be triggered when flooding occurs and hence opens up for human failure.  
•	The Flood Relocation Plan requires action by many people. As seen recently in the Maribyrnong flood, most people, even after being warned, stayed and ended up being flood rescued (there were over 60 Flood Rescues). This relies on a relevant responsible person being on site 24/7.
•	Whilst there is current property flood risk, this development increases density and will create greater risk and put more people on the footpaths and into flooded areas.
•	Several rescues have involved developments that have stated that there would be no involvement of emergency service personnel.
137	With regard to the above factors raised by Melbourne Water, we give weight to dot points 3, 4, 5, 6 and 7.
138	The DELWP Guidelines are silent on shelter in place but do reference the FRM Handbook in the bibliography.  Under the heading ‘Safe access for infill development’ the DELWP Guidelines state:
Where discretion is exercised, a flood emergency plan may be required. The plan sets out appropriate actions to minimise flood damage, risk to occupants, and demands on emergency services.
139	As detailed earlier, clause 13.03-1S lists the Victorian Floodplain Management Strategy (‘VFMS’) as a policy document.  The VMFS states that ‘Victoria follows the national approach set out in the FRM Handbook from a flood study to on-ground action’ and is referenced in its bibliography.
140	Whilst the Local Flood Guide and the Municipal Flood Emergency Plan actively encourage shelter in place and not evacuation, we consider that these documents provide emergency advice to persons in the immediate vicinity of a flood hazard.  This does not extend to justifying an increase in population by development of a site subject to a flood hazard.
141	Similar to Tivoli, we find that the FRM Handbook should be referred to where detail on a concept is silent or is lacking in the DELWP Guidelines.  We note, however, that it is a best practice guideline and does not purport to include minimum or practicably reasonable requirements.  It states:
In this handbook, the term ‘best practice principles’ is taken in its broadest sense to mean the underlying principles that need to be considered when managing flood risk and formulating floodplain management plans, leading to effective, equitable and sustainable land use across Australia’s floodplains.
142	The FRM Handbook provides:
advice on management of flooding within the floodplains and catchments of waterways due to the following type of flood events: Catchment flooding from prolonged or intense rainfall (e.g. severe thunderstorms, monsoonal rains, tropical cyclones).  Sources of catchment flooding include rivers and other watercourses, local overland flow paths and groundwater systems.
143	As this proceeding is concerned with local overland flow paths as well as rivers, we consider it is applicable to the circumstances of this application.
144	The FRM Handbook provides the following guidance for shelter in place: 
There are some limited instances where an individual house or commercial development may be designed as a shelter during a flood event. This would generally only be considered appropriate in existing developed areas: 
•	that have no other practical management options available. 
•	where evacuation is not possible due to lack of flood warning.
•	the development is outside flow conveyance areas. 
•	it is likely to be safer to shelter in place than to try and evacuate at the wrong time. 
This approach generally involves risk reduction by replacing existing flood-affected development with less vulnerable development of the same density. (Tribunal’s emphasis)
The structure should be designed for flood impacts with suitable water-resistant structural materials, and be designed to have some habitable floor area above, and to withstand the forces of, the PMF. Even in the case of shelter in place, occupation during a flood may be without water, sewerage, electricity, communications and other services, and the house will be isolated (and there is no safe duration of isolation). These factors all increase the risk of a need for rescue or on-site assistance due to, for example, the need for medical attention, on-site risks such as house fire (exacerbated by lack of electricity and difficult to extinguish due to isolation) and the need for basic supplies. 
These factors can impose additional loads on emergency services during floods. For these reasons, shelter in place is a last resort option normally only appropriate for existing flash-flood environments. (Tribunal’s emphasis).
145	The FRM Handbook sets out that the use of shelter in place is appropriate in situations where people are already on a site subject to flooding, but it does not justify an increase in population density by development of the site.
146	Melbourne Water submitted that we must consider the degree of flood hazard associated with the location of the land and the use, development, or management of the land so as to minimise any such hazard.  The intensification of development on an existing flood-affected property will increase the flood hazard of the site and given the depth and extent of the predicted flooding, the proposed design solution does not reduce or minimise this hazard.
147	We disagree with Melbourne Water on this point.  No evidence has been provided by either party that the intensification of development on the existing flood-affected property will increase the flood hazard.  This is not the case for flood risk.
148	Given that the existing development on the site is single-storey and has a smaller footprint than the proposed development, there is no dispute that the existing development is of a much lower population density.  The best practice information in the FRM Handbook is that a shelter in place strategy should involve risk reduction by replacing existing development with less vulnerable development of the same (population) density.  Whilst the proposed development is less vulnerable to flood hazard due its elevated habitable floor levels and resilient construction, it has a significantly increased population density.  This does not meet the risk reduction approach described in the FRM Handbook.
149	The key question to be determined is whether a shelter in place strategy adequately reduces the residual risk to life to an acceptable level during the design flood prior to precinct-wide mitigation works being undertaken.  To answer this question, an assessment needs to be made of the probable behaviour of a large number of persons (460) when required to conform to the requirements of the FRMP when the design flood occurs, noting that the adopted design flood could occur at any time from building occupation to when local mitigation works are completed.
150	In consideration of the above matters, we find that whilst the FRMP maybe an effective tool to quickly respond to the design flood event to minimise the likelihood of persons deciding of their own accord to evacuate the premises, the nature of this proposal would require a large number of distinct individuals, who may not be easily or readily managed, for a period of seven to eight hours.  This is compounded by the nature of the design flood, for which any warning will not be able to be provided.
151	Owner occupiers of the dwellings on the site will be subject to an owners corporation.  Whilst receiving advice from the owners corporation and from emergency services communications, those people will retain the freedom to come and go as they see fit.
152	The FRMP discourages but cannot eliminate the risk of people on the site exercising their right to enter hazardous flood water or undertake other non-conforming behaviour arising from being confined to a building by the flood hazard for a considerable period.
153	By extension, the residual risk of vulnerable community members and children evacuating the building of their own accord cannot be eliminated.   Whilst it is a reasonable expectation that vulnerable community members (previously defined as infants, very young children, the mentally or physically incapacitated, incarcerated and the elderly) would be accompanied by an adult, there is a risk that less dependent children may not be.  The risk that these people may exercise their right to evacuate remains.
154	It is not contentious that the inherent level of hazard posed by the design flood is beyond the control of the applicant.  We acknowledge that the applicant has done everything in its control to mitigate the flood risk and minimise the residual risk.
155	A strategy at clause 13.01-1S is to site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.  The design has minimised the risk to property and the natural environment.  The design as much as practicable for the scale and uses proposed however, does not minimise the risk to life in the event that vulnerable community members and children exit the building during the design flood and enter the floodwaters.
Will there be an unacceptable flood risk to property?
156	A summary of Melbourne Water’s opposition to the grant of a permit in respect of property damage can be summarised as being that the proposal does not acceptably address risk to property from flood events.
157	It is common ground that the proposed building has been designed in a manner that ensures it is suitably resilient to flooding impacts associated with the design flood.  All habitable floor levels provide the necessary 600mm freeboard and will not be affected by floodwaters.
158	The evidence confirmed that partial inundation during the design flood will occur in the building’s non-habitable spaces.  These spaces are identified in the evidence as the visitor bicycle parking area, the motorcycle parking area, the bin room service area and the garage entry at road level.
159	The experts agree that this extent of flooding is acceptable as habitable spaces will not be affected.
160	We accept the evidence that the flood risk to property is acceptable.
on balance, should a permit be granted?
161	On balance, we consider that the factors which do not support the grant of a permit outweigh those which do.  We say this having balanced the considerations which follow, as addressed in the submissions and evidence.
162	Commencing with the relevant planning framework, the land is not affected by any zones or overlays directed and managing flooding and/or flood-related impacts.  This is notwithstanding the acknowledged existence of a known flood hazard.  The consequence of this is that there are no zone or overlay purposes, or decision guidelines which explicitly require consideration of flood-related matters.  This is in contrast with provisions of the Land Subject to Inundation Overlay, Special Building Overlay and Floodway Overlay, for example.  In turn, this influences the weight given to policy, including policy at clause 13.01 and 13.03.
163	It is common ground between the parties that the subject land and its surrounds are floodprone and that flooding is a relevant consideration in the assessment and determination of the proposal.  Flooding considerations were the subject of detailed submissions and evidence.
164	The Amendment seeks to redress this existing situation by applying the proposed LSIO3 to the subject land and areas within the wider precinct which are floodprone.  While the parties are in general agreement that it is a seriously entertained planning proposal, the weight we can properly give the Amendment is arguably tempered by the fact that is has not yet been adopted by the Council.  We cannot consider, or apply the provisions of, the proposed LSIO3 because it does not form part of the Planning Scheme.
165	In respect of the Amendment, we accept the expert evidence that the design flood level provided by Melbourne Water is conservatively high.  It is modelled on assumed conditions in 2100 arising from a confluence of a number of key factors.  These are:
•	climate change factors affecting catchment rainfall intensities and sea level rise.
•	concurrent flood level peaks in the Moonee Ponds Creek and the local stormwater network.
•	the pumped drainage system fails.
166	We accept the expert evidence that the present-day design flood exceeds safety hazard criteria for children and vulnerable community members.
167	The adopted design flood level could theoretically occur from when the building is occupied until the precinct-wide drainage mitigation works are complete.  The longer the precinct-wide drainage mitigation works take, the probability of repeated design floods increases, noting that in practice, in the short to medium term, the depth of the adopted design flood level is conservative as the assumed climate change factors are unlikely to materialise for several decades.  Nevertheless, it is the case that whatever the actual flood level is, based on the present-day modelling, it will exceed the safety hazard criteria for children (0.5m maximum depth).
168	Melbourne Water has confirmed that mitigation works are required to address precinct-wide flooding.  This position is supported by detailed flood studies, such as the Flood Management Strategy.  While any design is at concept stage, the programming of works has not been determined and the funding has not been secured, given the identification of Arden Macaulay as an urban renewal area in the Planning Scheme, we consider it unlikely that some mitigation works will not be undertaken within the period to 2100.  However, it is not known if/when they will occur.
169	The building has been designed to be resilient to flooding impacts by elevating all habitable areas 600mm above the design flood level.  The evidence confirms that it will provide a safe refuge for occupants in the event that the design flood occurs.  While within the building, occupants will not be exposed to the flood hazard.  However, if occupants choose to leave the building and enter the floodwaters, they will be exposed to the flood hazard.
170	In the event that essential services to the building are impacted, (such as electricity, water, sewerage and telecommunications) this would be a precinct-wide issue which would be addressed accordingly by the relevant authorities.  It is unlikely to be confined to the subject land.
171	The duration of the flooding is for a period of seven to eight hours.  This is a significant time and depending on the time of day the flood were to occur, could contribute to occupants making the choice to evacuate from the building.
172	If a medical emergency were to occur in the building, then emergency/ rescue personnel would be able to access the site, given they would be able to navigate the floodwaters without exposing themselves to unacceptable risk.
173	While we consider it reasonable to expect the FRMP should, by and large, be observed by occupants given the seriousness of the matters it addresses and the importance of complying with its requirements and recommendations, this cannot be ensured.  The FRMP has its limitations.
174	This is given the multiple tenancies, significant building population and uses contained within the building.  We consider this increases the likelihood of non-compliance with the FRMP as compared to a circumstance where there is a single use of the building and its management is under a sole manager or operator.  It is a risk that occupants may not heed the warnings and advice contained in the FRMP and elect to evacuate the building and venture into the floodwaters.
175	If occupants choose to enter the floodwaters, they will be exposed to a flood hazard.  The evidence is that this will not be an unacceptable risk for anyone other than vulnerable community members (such as infants, very young children, the mentally or physically incapacitated, incarcerated and the elderly) or children.  Given that emergency personnel are likely to be able-bodied adults, they will be able to navigate the floodwaters without being exposed to unacceptable risk in the event that they need to access the subject land.  A further consideration is that vulnerable community members, due to their age and/or physical limitations, would be unlikely to venture into the floodwaters without the assistance of an adult who is not vulnerable.
176	For the design flood, once in the floodwaters, given the depth of flooding experienced in Macaulay Road, the proposed evacuation path is to the north along the laneway.  The flood hazard that exceeds the safety threshold for children exists for a distance of 60 metres, and this passage is through still water.  This is a significant distance to traverse particularly in circumstances where those evacuating are unfamiliar with the area, the weather/visibility may be poor and/or flood waters are cold.
177	The key factor which weighs against the grant of a permit is the residual risk that occupants of the building, particularly children, may elect to evacuate and venture into the floodwaters.  Instrumental in such an outcome are the potential difficulties and compliance associated with implementing the FRMP given the disparate nature of the occupancies within the building and the size of the building population.
178	It is common ground between the applicant and Melbourne Water that the Planning Scheme does not seek to eliminate risk, but to avoid and minimise risk.  We acknowledge that the design flood depth has been calculated based on climate change factors theoretically materialising in the year 2100 and is dependent on a number of coincident events which culminate in a conservatively high flood level and that level has been adopted for the entire time horizon.
179	We are not satisfied that the flood risk to people will be kept to acceptable safety thresholds as the proposed development ultimately does not meet the DELWP threshold safety criteria.
180	Further, we are not satisfied that the application reduces risk by replacing existing flood-affected development with less vulnerable development of the same density. (Tribunal’s emphasis)
181	In the event that the adopted design flood does occur, an unacceptable residual risk remains because:
•	The seven to eight hour duration of the flood is considered sufficiently long for some occupants to question the ‘shelter in place’ strategy;
•	Whilst we acknowledge that the applicant has designed the building to mitigate the flood hazard as much as possible, the hazard remains due to the depth of the surrounding design flood;
•	The flood hazard depth exceeds the DELWP safety threshold criteria for children and vulnerable community members;
•	Given the building population and disparate nature of uses and occupiers, some occupants may not comply with the FRMP; and
•	Children, particularly those that are less dependent, may choose to evacuate from the building unaccompanied by an adult.
182	When considering all these matters, on balance, we conclude that the reasons a permit should not be granted outweigh the reasons why it should.  Having considered the submissions, evidence and material presented, we conclude that whilst the proposal has mitigated the residual risk to life as much as possible, the residual risk remains unacceptable.
Conclusion
183	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Bill Sibonis
Senior Member		Peter Cole
Member