VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P974/2023
Permit Application no.2021/49 	
CATCHWORDS	
Subdivision, Coastal inundation, Effluent Dispersal System area, Population intensity, Flooding, Tree Removal, Native Vegetation Removal, Township Character, Climate Change, Design and Development Overlay Schedule 3, Environmental Significance Overlay Schedule 7, Township Zone, Guideline for Onsite Wastewater Effluent Dispersal and Recycling Systems (‘EDRS Guideline’), Guideline for Onsite Wastewater Management (‘GOWM’), West Gippsland Catchment Management Authority.   	

Applicant	Prom Country Developments Pty Ltd	

Responsible Authority	South Gippsland Shire Council	
Respondents	West Gippsland Catchment Management Authority	
	Ian David Round & Lesley Allanach	
	Sandy Point Community Group Inc. & Christopher Harvey	

SUBJECT LAND	89 Beach Parade
SANDY POINT VIC 3959	

HEARING TYPE	Hearing	

DATE OF HEARING	1, 2, 3, 6 May and 3, 4, 27 June 2024, 29 August 2024	

DATE OF ORDER	23 October 2024	

CITATION	Prom Country Developments Pty Ltd v South Gippsland SC [2024] VCAT 1015   	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Central Planning	
•	Drawing numbers:	Version 2	
•	Dated:	13 March 2024
	
•	Prepared by:	XWB Consulting Town Planning and Bushfire Consultants	
•	Report:	Peer Review of Bushfire Management Plan
Subdivision – 89 Beach Parade, Sandy Point	
•	Dated:	20 February 2024
	
•	Prepared by:	Ranges Environmental	
•	Report:	Bushfire Planning Assessment	
•	Dated:	March 2024
	
•	Prepared by: 	Eco Vision Australia	
•	Report:	Land Capability Assessment Report
Proposed Subdivision – 89 Beach Parade, Sandy Point 	
•	Dated:	14 March 2024	
No permit granted
2	In application P974/2023 the decision of the responsible authority is affirmed.
3	In planning permit application 2021/49 no permit is granted.

Jane Tait
Member		Claire Bennett
Member	

Appearances
For Prom Country Developments Pty Ltd	Jason Kane, Isaac Chambers, instructed by Glen Kell of Planning Central.  He called the following witnesses:
•	John Glossop, town planner, Glossop Town Planning
•	Greg James, environmental planner, Ranges Environmental Consulting
•	Robert Krainz, land management consultant, Eco Vision Australia
•	Warick Bishop, environmental engineer, Water Technology	
For South Gippsland Shire Council	Barnaby McIlrath, lawyer, PE Law.  He called the following witness:
•	Joesph Whitehead, environmental scientist, Whitehead and Associates 	
For West Gippsland Catchment Management Authority	Adam Dunn (Day 4)	
For Ian David Round & Lesley Allanach	Ian Round	
For Sandy Point Community Group Inc. & Christopher Harvey	On all three days David Skipper, Peter Slifski and also appearing on Day 3, Rob McGauran 	

Information
Description of proposal	Subdivision of the land into 13 lots. 
Existing native vegetation is to be removed on the review site and road reservation for the crossovers.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	South Gippsland Planning Scheme	
Zone and overlays	Township Zone (TZ)
Bushfire Management Overlay (BMO)
Environmental Significance Overlay – Schedule 7 (ESO7)
Design and Development Overlay – Schedule 3 (DDO3)	
Permit requirements	Clause 32.05-5 – subdivide land in TZ
Clause 44.06-2 – subdivide land in BMO
Clause 42.01-2 – removal of native vegetation and subdivide land in an ESO7 
Clause 43.02-3 – subdivide land in a DDO3
Clause 52.17 – removal of native vegetation	
Land description	The review site is occupied by the Sandy Point Caravan Park and is bounded by Beach Parade (south), Park Avenue (west) and Ocean View Parade (north).  It has a 139.9 metre frontage to Beach Parade and depth of 73.2 metres to Park Avenue.  The overall site area is 9140 square metres.  
Scattered trees and patches of shrubs are present on the review site and within the road reserve around the perimeter of the land. 
Three dwellings and five vacant lots abut the adjoining land to the north.  	
Tribunal inspection	An accompanied site inspection was conducted on Day 2 of the hearing.   	

  Reasons
What is this proceeding about?
1	Prom Country Developments Pty Ltd (the ‘applicant’) applied for a planning permit to subdivide land at 89 Beach Parade, Sandy Point into 13 lots.  
Figure 1 – Proposed Subdivision

2	Key features of the subdivision are:
•	Lot areas range from 588 square metres to 1176 square metres;
•	Each lot has a building envelope (150 square metres) that is set back 7.5 metres from the frontage and one metre from the side boundaries;
•	An effluent dispersal system area is provided in the rear yards (169-210 square metres) and is set back 1.5 metres from the side and rear boundaries;
•	Lot 13 has an area of 937 square metres and contains wastewater easements in favour of Stage 1 and 2 of PS537365N; 
•	Lots have a bushfire construction level of BAL-19 with an associated defendable space of 19 metres and 10,000 litres static water supply;
•	Some native and non-native vegetation removal is proposed on the review site and adjoining road reserve for the creation of crossovers. 
•	Planning permit documents accompanying the application include:
•	Bushfire Management Statement and Plan
•	Land Capability Assessment (wastewater)
•	Native Vegetation Impact Assessment
•	Native Vegetation Removal Report
•	Tree Assessment Report 
3	The applicant states Lots 1-8 can accommodate a three bedroom dwelling with a 169 square metre effluent dispersal system area and Lots 9-12 can accommodate a four bedroom dwelling with a 210 square metre effluent dispersal system area in accordance with the Land Capability Assessment.
4	South Gippsland Shire Council ('Council’) resolved to refuse the permit application on grounds the proposal is inconsistent with policies in the South Gippsland Planning Scheme (the ‘Planning Scheme’) at Clauses 11 (Settlement), 12 (Environmental and landscape values), 13 (Environmental risk and amenity) and 15 (Built environment and heritage).  A further ground is that the proposal fails to adequately address objectives and decision guidelines of the Township Zone (‘TZ’), Design and Development Overlay – Schedule 3 (‘DDO3’) and Environmental Significance Overlay – Schedule 7 (‘ESO7’).
5	Other grounds of refusal are that the proposal fails to address impacts on the neighbourhood character, roadside vegetation, effluent dispersal, and stormwater management.  An additional ground was included to respond to the concerns raised by the West Gippsland Catchment Management Authority (‘CMA’) about future climatic conditions in relation to access.
6	Council argues the subdivision is an overdevelopment of the site and it will result in an unacceptable neighbourhood character outcome.  It says the proposal fails to properly consider effluent dispersal and stormwater management and the impacts of future climatic conditions on this township. It relied on the evidence of Mr Whitehead who initially had concerns about the findings in the Land Capability Assessments.  He had concerns about the size of the effluent dispersal system areas on each lot and considered there will be conflict between the space required for construction of the dwellings and effluent management.  We note that, by the end of the hearing, Mr Whitehead and Mr Krainz were in agreement about the calculations for the effluent dispersal system areas. This is discussed further below. 
7	The applicant argues the review site provides a unique opportunity to provide additional and diverse housing in the township.  It considers the residential subdivision is a highly desirable outcome in terms of the zoning and Planning Policy Framework (‘PPF’).  It says the subdivision is a well resolved and considered layout that will enable construction of a modest dwelling on each lot that is consistent with the pattern of subdivision and character of the township.  It relies on the town planning evidence of Mr Glossop.  He considers the subdivision is consistent with strategic expectations and it is an appropriate character outcome. 
8	The applicant also relies on the evidence of the following experts in support of its case:
•	Mr James, an environmental planner, who considers the tree removal and bushfire expectations of the Planning Scheme are met.  
•	Mr Bishop, a hydraulic engineer, who considers that under 2100 conditions, there will be safe access during a flooding event.  
•	Mr Krainz is the land management consultant who prepared the Land Capability Assessments for the subdivision.  He considers the effluent dispersal system areas are suitably sized and sited on the proposed lots.
9	The respondents are owner/occupiers of three townhouses to the north-east of the review site at 16, 18 and 20 Ocean View Parade.  They are concerned about the continued use and security of the septic treatment plant located in easement E-1 proposed on Lot 13.  
10	The other respondent is the Sandy Point Community Group Inc (‘SPCG’).  It submits the built form outcome of the subdivision does not respond to policy and it will erode the existing landscape character due to the modest setbacks of the building envelopes to both streets and between dwellings.  It says the siting of the dwellings in the building envelopes will not nestle the built form into the setting and fails to provide generous setbacks to preserve the screened, heavily landscaped interface to the street. 
11	The SPCG is also concerned that the subdivision relies on vehicle access from the street rather than from an internal accessway within the subdivision.  It submits the subdivision will conflict with safety of pedestrians due to reversing vehicles from multiple crossovers given Beach Parade forms part of the active pedestrian street network in the township. 
What are the key issues?
12	Having undertaken an inspection of the review site and township and taking into consideration all the submissions and evidence, we find the key issues in this matter are:
•	Does the proposal respond to its zoning and policy context?
•	Is the subdivision an acceptable response to the character of the township?
•	Is the tree removal and landscape response acceptable?
•	Does the subdivision adequately consider flooding?
•	Can all wastewater be treated and retained within the lots?
13	Planning does not seek ideal outcomes, or outcomes which respond positively to every relevant policy.  Rather, acceptable outcomes are the measure by which planning decisions are to be made.  We must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the Scheme.  Clause 71.02-3 requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. 
14	We have decided to affirm Council’s decision as we are not satisfied the subdivision layout, and resulting built form outcomes, meet the purposes of the TZ and objectives of the DDO3 and ESO7 which is to respect the coastal village character of Sandy Point.  We also have concerns about the size of lots, including the limited space for planting outside the building envelope and effluent dispersal system areas.  We consider this layout will not maintain the coastal landscape character of the township.  
15	We do not share the Council’s concerns about wastewater, or the CMA’s initial concerns about access and egress from the township in times of flooding.  On the evidence before us, we find that all wastewater can be treated and retained within the lots, and the number of people at risk of isolation in the township due to flooding of the access road will not increase.  Our reasons follow.
Procedural issues & rulings 
16	Prior to the hearing, amended plans were prepared by the applicant and notice of these was given in accordance with Tribunal Practice Note PNPE9.  In summary, amendments to the plans include:
•	Reduction from 14 to 13 lots;
•	Provision of a 3 metre setback to the west boundary for Lot 9;
•	Lots 1-12 with a 7.5 metre frontage setback;
•	Nomination of accessway and crossovers to each lot;
•	Provision of an underground domestic water tank in the frontage setback;
•	Provision of a CFA slim line tank in the building envelope;
•	Provision of 19 metre defendable space for Lot 8.
17	Council and the respondents continue to maintain their opposition to the proposal.  There being no objection, we allowed the amended plans to be substituted and these now form those on which our decision is reached.
18	The Environment Protection Authority (‘EPA’) released the Guideline for onsite wastewater effluent dispersal and recycling systems (May 2024) (‘EDRS Guideline’) and the Guideline for onsite wastewater management (May 2024) (‘GOWM’) during the hearing, on 22 May 2024.  
19	All parties and relevant witnesses addressed these guidelines in their submissions.  Addendums to the evidence of Mr Krainz and Mr Whitehead were received prior to recommencement of the hearing on Days 6-7.  Mr Whitehead and Mr Krainz were recalled on Day 8 to respond to these guidelines. 
physcial context
20	The review site is occupied by a caravan park that contains approximately 60 cabin/caravan sites and 20 camping sites.  It is enclosed by cyclone wire fencing and has one main pedestrian and vehicle access to Beach Parade.  The existing wastewater treatment is in the south-east corner of the site.  There are scattered trees and native vegetation throughout the review site and in the adjoining road reservations.  The permanent cabins/caravans are located at the western end of the site. 
21	Council advises that the western portion of the review site is encumbered by easement E-1 and E-2 which has the purpose of ‘water disposal by either under-ground soakage system and/or above ground irrigation system’ which benefits Lots 1-3 and the common property on PS537365N (i.e. townhouses at 16-20 Ocean View Road).  It says easement E-2 currently has no infrastructure, but this will be required as part of the development of PS537365N/D1 for the five lot subdivision approved in Permit 2017/76/A (see Planning History below).
22	The review site is centrally located in the township and abuts the commercial precinct to the east.  This precinct contains a general store (with fuel pump), real estate agency and vacant tenancies that face Beach Parade.  To the north of the shops is a community centre that contains a range of indoor recreational/community facilities, tennis courts and playground.  This is also a nominated Bushfire Neighbourhood Safer Place.  Public car parking is available on the south side of Beach Parade and east of Church Parade.

Figure 2 – Aerial Photograph of Sandy Point Township

Review site 

Figure 3 – Aerial of review site and immediate environs

Review site 

23	To the north-east are three double storey attached houses at 16, 18 and 20 Ocean View Parade.  These dwellings were approved by Council in 2004 (see Planning History below).  North of Ocean View Parade and south of Park Avenue are single and double storey detached houses that contain front gardens, single crossovers and varied frontage and side setbacks.  These streets are informal in nature with an absence of kerbs, channels and footpaths.
24	Land on the south side of Beach Parade is within the coastal reserve that extends to the waterline.  The reserve contains pedestrian access to the beach and emergency vehicle access to Sandy Point Surf Life Saving Club.
25	Sandy Point is not serviced by sewerage or reticulated water. Most dwellings rely on rainwater tanks but there are many underground bores in the township.  
26	Mr Bishop provided a description of the topography and hydraulic features of the surrounding area.
The Sandy Point township, including the Subject Site, is located on an elevated backdune system that is located on the inland side of the primary coastal dune facing the Bass Strait shoreline. The primary dune reaches elevations up to around 20 m AHD with most of the township elevated between 4 and 10 m AHD. The Subject Site is reasonably flat with levels varying from approximately 3.5 m AHD in the north-west corner to approximately 5.5 m AHD near the centre of the Subject Site.
North of the Subject Site and the town lies a coastal plain which surrounds Shallow Inlet and extends westward towards Waratah Bay. Shallow Inlet is a tidal embayment with extensive fringing tidal flats and salt marsh. The coastal plain is highlighted by the light green coloured area in the figure below and typically has elevations between 1 and 2 m AHD.
Shallow Inlet is separated from the surrounding rural land by a levee which prevents high tides from entering the farm land and damaging pasture grasses. This is evident in the figure below where there is a clear distinction between the coastal vegetation and the pasture areas either side of the levee.
27	The topography is reflected in Figure 4.
Figure 4 – Review site and surrounding topography

Review Site

28	Mr Bishop also provided a history of the levee:
Anecdotal evidence (from long term residents of the area) suggests that levee breaches or failure have not occurred over living memory (many decades). Maintenance of levees is understood to be undertaken by landowners either on an individual or collective basis. It is in the interests of landowners to maintain the integrity and level of protection of these levees into the future. Whilst the levee is not critical to ensuring safe access to Sandy Point under extreme storm site conditions at present, when this becomes the case in the future, there would be reason for Council to take interest in the maintenance of the levee (or other measures such as raising the main road) to protect access to the Sandy Point township.
planning history
29	Several previous planning permits have been issued for the review site that include:
•	Permit 2004/25 was issued for development of ten dwellings and removal of native vegetation.  Three of the ten dwellings were constructed (now known as 16, 18 and 20 Ocean View Parade).  The EPA wastewater system (to be in E-1 on Lot 13) was designated for the caravan park and development.
•	Permit 2007/244 was issued for a ten lot subdivision.  Stage 1 comprises the three constructed dwellings and a common property easement.  Easement (E-1) was created for the wastewater system for the caravan park and dwellings.  Stage 2 comprised lots to accommodate the seven dwellings that have not been constructed.
•	Permit 2011/298 was issued for development of seven units and subdivision.  This approval reflected the remaining unconstructed dwellings that were approved under Permit 2004/25.  This permit was not acted upon.
•	Permit 2017/76/A was issued for a five lot subdivision.  This permit created E-2 to accommodate the additional area required for wastewater identified by the EPA.  No wastewater system is in E-2.  The subdivision created a large lot for the caravan park, lots and common property for the townhouses on 16-20 Ocean View Parade.  Stage 2 includes the five vacant lots and E-2 is required for these lots.
policy context
30	The site is within the TZ that has purposes to provide for residential development and a range of commercial, industrial, and other uses in small towns and to encourage development that respects the neighbourhood character of the area.  In accordance with Clause 32.05-5, the subdivision must meet all the objectives and standards of Clauses 56.03-5, 56.04-2 to 56.04-5, 56.05-1, 56.06-2, 56.06-4, 56.06-5, 56.06-7 and 56.06-8 to 56.09-4.  
31	In accordance with Clause 32.05-3, land used for a dwelling must meet the following requirements:
•	Each dwelling or small second dwelling must be connected to reticulated sewerage, if available. If reticulated sewerage is not available, all wastewater from each dwelling must be treated and retained within the lot in accordance with the requirements of the Environment Protection Regulations under the Environment Protection Act 2017 for an on-site wastewater management system. 
•	Each dwelling or small second dwelling must be connected to a reticulated potable water supply or have an alternative potable water supply, with appropriate storage capacity. 
•	Each dwelling or small second dwelling must be connected to a reticulated electricity supply or have an alternative energy supply.
32	As the review site is not connected to reticulated sewerage, the subdivision plan shows the location of the building envelope and effluent dispersal system area for each lot.  The plans also show the provision of an underground water tank in the frontage of each lot.
33	Relevant general decision guidelines at Clause 32.05-14 include:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The protection and enhancement of the character of the town and surrounding area including the retention of vegetation.
•	In the absence of reticulated sewerage, a Land Capability Assessment on the risks to human health and the environment of an on-site wastewater management system constructed, installed or altered on the lot in accordance with the requirements of the Environment Protection Regulations under the Environment Protection Act 2017
•	The scale and intensity of the use and development.
34	Specific decision guidelines for subdivision are the consideration of the Municipal Planning Strategy (‘MPS’) and PPF, the pattern of subdivision and its effect on the spacing of buildings and the objectives and standards of Clause 56.
35	The review site is within DDO3 – Sandy Point.  Clause 1.0 contains the design objectives under headings of built form/landscape character, siting and setbacks, site coverage, landscaping and environment, and materials and design.  Clause 3.0 also states that subdivision within the TZ is to meet design objectives where the proposed subdivision maintains the existing character of the area and the existing informality of the current road and drainage system is maintained, while achieving improved management of stormwater and runoff.  We will address these objectives in our neighbourhood character findings below.
36	The site is within an ESO7 – Coastal Settlements.  The environmental objectives to be achieved include:
•	To protect and enhance the natural beauty of the coastal townships. 
•	To protect and enhance the environmental quality of the townships. 
•	To minimise the risk of erosion, and destruction of the environment through poorly managed development. 
•	To ensure that development adjacent to coastal areas is compatible with the environment and does not result in adverse impacts on coastal processes.
37	Sandy Point, including the review site, is within a BMO.  A Bushfire Planning Assessment was prepared and submitted with the application in accordance with the requirements of Clause 44.06-3.  
38	Particular Provisions relevant to this application include Clause 52.17 – ‘Native Vegetation’.  The purposes of this clause are:
To ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation. This is achieved by applying the following three step approach in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (Department of Environment, Land, Water and Planning, 2017) (the Guidelines): 
1.	Avoid the removal, destruction or lopping of native vegetation. 
2. 	Minimise impacts from the removal, destruction or lopping of native vegetation that cannot be avoided. 
3. 	Provide an offset to compensate for the biodiversity impact if a permit is granted to remove, destroy or lop native vegetation. 
To manage the removal, destruction or lopping of native vegetation to minimise land and water degradation.
39	Clause 65.01 contains relevant considerations such as the proximity of land to any public land, the extent and character of native vegetation and the likelihood of its destruction and whether native vegetation is to be or can be protected, planted, or allowed to regenerate.  Clause 65.02 relates to subdivision and requires consideration of whether native vegetation can be protected through subdivision and siting of open space areas.
40	The MPS, at Clause 02.02 (Vision), has strategic objectives to develop plans that will balance and use the natural values of the environment, improve the Shire’s liveability and build on the benefits of its proximity to Melbourne.  Clause 02.03-1 (Strategic directions) nominates Sandy Point as a Coastal Village.  The clause describes the role of these settlements:
In addition to supplying a limited range of services and facilities to residents, Coastal Villages service holiday populations as well as significant retiree and partially absentee residents. The character of the Coastal Villages combined with their environmentally significant surrounds and landscapes, affords them a charming attractiveness.
41	Council seeks to:
•	Contain growth within settlement boundaries to protect the environmental, landscape and agricultural values between and surrounding the settlements. 
•	Balance growth and development with the associated impacts on vegetation, soil stability and water quality and the risks of climate change. 
•	Provide an attractive and safe residential environment and strengthen the economic future of each coastal village.  
42	Other clauses in the MPS that are relevant to our decision include:
•	Clause 02.03-2 (Environmental and landscape values) seeks to ensure coastal development responds to the landscape setting and character;
•	Clause 02.03-3 (Environmental risks and amenity) seeks to apply the precautionary principle when considering the intensification of development in coastal areas;
•	Clause 02.03-4 (Natural Resource Management) seeks to limit changes in land use that lead to a decline in the quality of land and water resources;
•	Clause 02.03-5 (Housing) has an objective to accommodate housing growth that is sustainable and sympathetic to:
•	The hierarchy and existing character of settlements. 
•	The availability and capacity of infrastructure and commercial, community and transport services.
•	Significant environmental features and landscapes.
•	Clause 02.03-9 (Infrastructure) – Council seeks to:
•	Facilitate the provision of efficient and effective wastewater management systems to all towns within the Shire. 
•	Support the implementation of stormwater drainage that minimise impacts on the environment. 
•	Locate, design and manage waste disposal facilities to minimise amenity impacts.
•	Clause 02.03-7 (Tourism) – Council aims to protect the coastline for their tourist value and encourage eco-tourism.
43	Relevant settlement policies in the PPF include: 
•	Clause 11.01-1S (Settlements) – This clause contains strategies to limit urban sprawl and direct growth into existing settlements and to ensure regions and their settlements are planned in accordance with their relevant regional growth plan;
•	Clause 11.02-3S (Sequencing of development) contains strategies to ensure that planning for water supply, sewerage and drainage works receives high priority in the early stages of planning for areas of growth;
•	Clause 11.03-4S (Coastal Settlement) has an objective to plan for sustainable coastal development.  This includes to ensure a sustainable water supply, stormwater management and sewerage treatment for all development;
•	Clause 13.01-1S (Natural Hazards and Climate Change) has an objective to minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning.
•	Clause 13.02-1S (Bushfire Planning) contains a strategy to plan to strengthen the resilience of settlements and communities and prioritise protection of human life by: 
Directing population growth and development to low risk locations, being those locations assessed as having a radiant heat flux of less than 12.5 kilowatts/square metre under AS 3959-2018 Construction of Buildings in Bushfire-prone Areas (Standards Australia, 2018);
•	Clause 15.01-3S (Subdivision) contains the following relevant strategies:
•	Creating urban places with a strong sense of place that are functional, safe and attractive.
•	Providing a range of lot sizes to suit a variety of dwelling and household types to meet the needs and aspirations of different groups of people. 
•	Creating landscaped streets and a network of open spaces to meet a variety of needs with links to regional parks where possible.
•	Protecting and enhancing habitat for native flora and fauna and providing opportunities for people to experience nature in urban areas.
•	Clause 15.01-5S (Neighbourhood character) that has an objective to recognise, support and protect neighbourhood character, cultural identity, and sense of place; and
•	Clause 16.01-1l (Housing supply in South Gippsland) is a policy to encourage medium density housing close to the commercial centres of Leongatha, Korumburra, Foster and Mirboo North. 
44	Environmental policies in the PPF that are relevant to our decision include:
•	Clause 11.03-5S (Distinctive areas and landscape) has an objective to recognise the importance of distinctive areas and landscape which is achieved by supporting use and development where it enhances the valued characteristics of these areas;
•	Clause 12.03-1L (Biodiversity) has a strategy to retain and enhance areas of remnant vegetation within urban areas;
•	Clause 12.01-2S (Native Vegetation Management) contains an objective to ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation; 
•	Clause 12.05-1S (Environmentally Sensitive Areas) seeks to protect environmentally sensitive areas. 
•	Clause 12.05-2L-01 (Coastal and hinterland landscapes) contains a general strategy to ensure that development is subordinate to the natural, visual and environmental landscape character and significance.
•	Clause 12.05-2L-02 (Significant landscape character areas) identifies the review site is within Character Area 1.5 – Waratah Bay/Corner Inlet Strategies.  
•	Clause 13.01-1S – (Natural hazards and climate change) has an objective to minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning.  There are strategies to direct population growth and development to low risk locations and to identify at risk areas using the best available data and climate change science.
•	Clause 13.01-2S – (Coastal inundation and erosion) has an objective to plan for and manage coastal hazard risk and climate change impacts.  Strategies include to plan for sea level rise of not less than 0.8 metres by 2100 and allow for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and coastal impacts associated with climate change;
•	Clause 13.03-1S – (Floodplain management) has an objective to assist the protection of life, property and community infrastructure from flood hazard, including coastal inundation, riverine and overland flow;
45	Clause 11.01-1L-09 is a local policy that relates to coastal villages. Strategies for Sandy Point include:
•	Promote development that respects and enhances the coastal character of the village. 
•	Promote long term development areas in locations that maintain pedestrian accessibility to the nearby foreshore and commercial centre.
46	The parties drew our attention to several strategic documents that they consider relevant to our decision. These include:
•	South Gippsland Housing and Settlement Strategy (2013) 
•	South Gippsland Municipal Wastewater Management Plan 2022-2026 
•	Guidelines for development in flood prone areas (WGCMA 2020)
•	Infrastructure Design Manual
•	South Gippsland Coastal Strategy (2023) (‘Coastal Strategy’)
•	Guideline for onsite wastewater management (EPA May 2024) (‘GOWM’)
•	Guideline for wastewater effluent dispersal and recycling systems (EPA May 2024) (‘EDRS Guideline’)
•	The Victorian Land Capability Assessment Framework (Municipal Association of Victoria, 2014) (‘LCA Framework’)
47	The GOWM and the EDRS Guideline replace EPA Publication 891.4: Code of Practice: onsite wastewater management (‘Code of Practice’). 
48	Clause 32.05-3 requires that, if reticulated sewerage is not available, all wastewater from each dwelling must be treated and retained within the lot in accordance with the requirements of the Environment Protection Regulations 2021 (‘EP Regulations’) under the Environment Protection Act 2017 (Vic) (‘EP Act’) for an onsite wastewater management system (‘OWMS’). 
49	The GOWM explains the regulatory framework for OWMS under the EP Act and EP Regulations. This includes the general environmental duty (‘GED’) and obligations for the operation and maintenance of OWMS.  The GOWM provides advice on how to meet these obligations using a risk-based approach informed by EPA expertise and industry knowledge. 
50	The GOWM outlines a risk-based approach to managing OWMS and provides links to other guidelines and information about onsite wastewater management.  The GOWM includes a section on Land Capability Assessment and references the LCA Framework, which outlines procedures for carrying out LCAs.  The GOWM contains sections relevant to this decision, including the following, which the experts were asked to address in their addendums to their evidence:
o	4.3.1.2.1 – Secondary treatment standard with nutrient reduction capability at page 35.
51	The EDRS Guideline is technical guidance for OWMS and is a reference document designed to support the environment protection regulatory framework.  It contains information that supports a risk-based approach for the design and use of effluent dispersal and recycling systems.  The EDRS Guideline contains sections relevant to this decision, including the following, which the experts were asked to address in their addendums to their evidence:
o	4.4 – EDS Sizing Methods at page 76.
o	4.4.3 – Nutrient Balance Calculations at page 79.
o	4.4.3.1 – Calculations at page 80.
o	4.4.3.2 – Soil Processes at page 80.
o	4.4.3.3 – Crop Uptake Values at page 81.
o	4.4.4 – Calculation method for EDS suitability and selection
(including Table 22) at page 82.
Does the proposal respond to its zoning and policy context?
52	Council argues that whilst the TZ anticipates residential subdivision, it does not translate to any subdivision being supported.  It says that respecting neighbourhood character is a purpose of the TZ and it is reinforced in relevant objectives and standards of Clause 56 Residential Subdivision.  Additionally, it says there is a requirement to ensure stormwater and wastewater is adequately managed, which is not achieved in this subdivision.  It considers there also is a lack of understanding regarding the proposed effluent dispersal system area.
53	Council argues the proposal is inconsistent with the objectives of the DDO3 and ESO7 due to a combination of factors such as the impacts on vegetation on site and in the public realm, uncertainty about future built form, vehicle and pedestrian movement provision and open space.  
54	The respondents support Council’s position and say the proposal is inconsistent with key State and local policy ambitions for urban development in the township.  They say it fails these settlement policies as the proposal degrades the coastal village character of the township.
55	The applicant refutes this proposition and submits there is substantial support in the PPF for additional housing opportunities as the site within the settlement boundary of the township.  It says the proposal responds to objectives of Clause 02.03-1 for a coastal village as it conserves and avoids the removal of vegetation, creates a mix of lot sizes on residentially zoned land and creates a safe and attractive environment to strengthen the economic future of the township.  It also says the subdivision meets the objectives of Clause 11.01-1L as it is an attractive, highly accessible design which is compatible with the coastal character of Sandy Point.  It notes the review site is highly accessible for pedestrians to the foreshore and commercial centre of the township.  
56	Mr Glossop agrees and supports the principle of the review site being subdivided for residential purposes given its location within the settlement boundary and adjacent to the commercial and civic core.  He says the site is already used for some form of accommodation and is not affected by any inundation or flooding controls.  He acknowledges that consideration must be given to coastal policy but the local policies at Clauses 12.05-2L-01 and 12.05-2L-02 are of limited assistance as the site is covered by the DDO3.  
Tribunal findings
57	We agree with the applicant that the review site has many attributes that make it an ideal location for residential subdivision.  These include its central location within walking distance of the beach, shops and community facilities.  The review site is also within the settlement boundary and therefore is consistent with settlement policy to contain development within this area.  
58	In accordance with Clause 02.03-1, coastal villages such as Sandy Point are noted for their environmentally significant surrounds and landscapes that ‘affords them a charming attractiveness’.  We note the Planning Scheme does not identify Sandy Point as a township earmarked for further growth.  Its coastal village status, at Clause 02.03-1, states the focus is the holiday populations as well as significant retiree and partially absentee residents.  This therefore requires a balancing of growth and development with the impacts on features that contribute to the town’s attractiveness, particularly the vegetative character of the coastal landscape.  
59	We note the local policy seeks to maintain the low scale holiday character of this township.  Whilst the subdivision will facilitate development of a single dwelling on each of the 12 lots that could be used for holiday or permanent dwellings, we are unconvinced the building envelopes will respect the coastal village character.  We will expand on these reasons further in our findings.
60	We acknowledge the configuration, orientation and size of the lots are comparable to the existing subdivision pattern of the township.  However, the appropriateness of the subdivision requires consideration of several other issues to be an acceptable outcome.  This includes its response to the site constraints, impact on vegetation on the review site and in the public realm, likely built form from the design of the building envelopes, vehicle and pedestrian movements, and open space provision.  
61	We have come to the conclusion the proposal has not adequately responded to the objectives of the PPF and MPS or the specific built form controls for Sandy Point in the DDO3 or the ESO7.  Our findings on these matters will be discussed further below.  
Is the subdivision an acceptable response to the character of the township?
62	One of the purposes of the TZ is to encourage development that respects the neighbourhood character of the area.  It contains decision guidelines for subdivision which are to consider the pattern of subdivision and its effect on the spacing of dwellings.  Clause 56.03-5 (Standard C6 – Neighbourhood Character) also has an objective to design subdivisions to respond to the neighbourhood character.
63	Whilst there is no neighbourhood character statement, the design objectives of the DDO3 provide guidance on the built form/landscape character expectations for Sandy Point including:
•	To protect and manage the coastal village character of Sandy Point. 
•	To maintain the predominance of modest, minimal impact housing and the well-vegetated character of allotments. 
•	To encourage single storey development, and recessive second storey development that is respectful of the typical built form and the coastal landscape setting. 
•	To encourage building heights which do not protrude above the existing tree canopy. 
•	To discourage boundary fencing forward of building frontages, unless this is a timber post and wire fence. 
•	To minimise the dominance of car parking structures and outbuildings on views from the street and other sensitive viewing locations.
64	Clause 11.01-1l-09 includes general strategies to maintain the low scale, holiday character of each coastal village by maintaining the current housing density and promoting development that respects and enhances the coastal character of the village.
65	Mr Glossop rightly points out the main consideration is whether the proposed subdivision ‘fits in’ with its surrounds, in accordance with the purpose of the TZ and Clause 11.01-1L-09.  He identified a defining feature of this township is the heavily vegetated appearance and generally regular subdivision pattern.  This characteristic was also highlighted by the SPCG.
66	Based on our site inspection, and photographs tabled at the hearing, we agree dense vegetation within the coastal reserve and in the front and rear yards of existing properties is an important feature of this coastal town. We also observed the regular subdivision pattern within the vicinity of the review site and the existing dwellings are generally modest in size.  Our findings on how this subdivision ‘fits in’ will be discussed below in terms of components of the neighbourhood character, such as lot size, side setbacks, front setbacks, and location of parking.
Lot sizes
67	The applicant argues the proposed lot sizes are an acceptable response to the existing subdivision pattern in the township.  It says each lot will accommodate a single dwelling which is consistent with the density of development in Park Avenue, Ocean View Parade and the broader township.  
68	Mr Glossop agrees and says the proposal will be a comfortable fit as the size and dimensions of the lots are comparable with the existing arrangement of lots in Sandy Point.  However, he did acknowledge:
The lots are smaller than other lots in Sandy Point but smaller lots and slightly higher densities are not evidence of a ‘disrespectful’ character outcome. 
69	Council is concerned the subdivision is asking too much from the site as it is inconsistent with the objectives of the DDO3.  The SPCG agrees and says the type of urban form, scale of development on these smaller lots will be unprecedented in this township.
Tribunal findings
70	The application proposes six lots with an area of 588 square metres, four lots with an area of 721 square metres and two single lots with an area of 606 square metres and 1176 square metres.  Whilst the regular lot layout reflects the existing subdivision pattern of the area, we agree with Mr Glossop that the lot sizes are generally smaller than most in the township.  
71	We find these lots are too constrained to accommodate the proposed building envelope and effluent dispersal system area, whilst still achieving the neighbourhood character objectives.  These site constraints will result in the dominance of the built form on the site instead of greater presence of vegetation, which is found on residential lots nearby and is a defining character feature.  The following findings will outline our concerns regarding the size and siting of the building envelopes in relation to the preferred neighbourhood character objectives.
Building Envelopes
Size of envelopes
72	The SPCG argues that given the dimensions of the building envelopes, it is likely the lots will be developed with two storey dwellings to accommodate three and four bedroom dwellings.  It says the small lot size, combined with the limited size of the building envelope, will amplify the demand for scale on each lot.
73	The applicant argues the proposed building envelopes are an appropriate size to ensure future dwellings can be designed in a manner to complement and respect the built form, materials and architectural expressions of existing dwellings in Sandy Point.  It submits the lots are designed to accommodate modest two and three bedroom dwellings given the constraints of the effluent disposal system areas.  
74	Mr Glossop acknowledges the building envelopes do not include a height restriction.  However, he is not concerned that this restriction is not shown on the plan as the DDO3 includes a discretionary built form control for any buildings with a height over 6.5 metres.  He says any subsequent buildings and works (i.e. dwelling) over this height will then need to respond to the design objectives and decision guidelines of the overlay.  
Tribunal findings 
75	Lots 1-8, facing Beach Parade, propose a building envelope of 13.9 metres by 10.8 metres and area of 150 square metres. Lots 9-12, facing Ocean View Parade, propose a building envelope of 210 square metres with dimensions of 10 metres by 15 metres. 
76	We consider the size of the lots, and size of the building envelopes, will create the potential for larger scale-built form (possibly two storey dwellings) near each other without sufficient space around them for landscaping.  We find the built form outcomes on these lots will be a jarring insertion in the township that will become the dominant element in both streetscapes.  We therefore find the density of subdivision is inconsistent with the design objectives of the DDO3 including to maintain the predominance of modest, minimal impact housing and the well-vegetated character of allotments.  
77	We also consider that there is a likelihood that built form will be constructed over the entire building envelope as they are required to accommodate not only the dwelling but car parking, storage and CFA water tanks.  We were advised that structures, including storage sheds, would not be permitted within the effluent dispersal system areas which occupy most of the rear yards.
78	We note that there is no guarantee the lots will be developed with modest, two and three bedroom dwellings, as submitted by the applicant.  Each individual lot owner will develop the land within the building envelope to suit their own household needs, which is not regulated in the Planning Scheme.  We do not agree with Mr Glossop that the built form requirements of the DDO3 will ensure any future dwelling will acceptably ‘fit in’ with the local context given the size and setbacks of the building envelopes and effluent dispersal system area.  This approach fails to address the design objectives for subdivision in the overlay which is to maintain the existing character of the area.
79	We therefore conclude the proposal fails to respond to the design objectives of the DDO3 as the development within the building envelopes is unlikely to be screened by, and nestled within, the coastal landscaped setting. 
Side Setbacks
80	Council submits the side setbacks of the building envelopes do not respect the existing subdivision pattern of the area and are completely at odds with the character of the area.  The SPCG agrees and says a two metre setback between taller built form does not respond to the attributes of the settlement where landscape context and separation of built form is a valued characteristic.  It says there is the potential for side-by-side built form becoming the dominant feature on this site and within the streetscape.  It submits this is more typical of a suburban subdivision, not a township such as Sandy Point.
81	The applicant argues the side setbacks are acceptable, and they will ensure a spacious setting around future built form.  It says the dwellings will present as freestanding built form when viewed from the public realm and therefore will integrate with the streetscape in an acceptable and polite manner. 
82	Mr Glossop acknowledges that properties in Sandy Point generally exhibit greater separation. He says:
Properties within Sandy Point generally exhibit greater separation, however, much like my observation on vegetation within the township, lesser separation between dwellings is appreciable within the area bordered by Sunshine Rise to the north, Church Parade to the east, Beach Parade to the south, and Park Avenue to the west (which includes the Review Site). Indeed, the dwellings at 16-20 Ocean Parade are attached. I am comfortable that the extent of separation between building envelopes is appropriate. 
 Tribunal findings
83	We agree with Mr Glossop that properties in Sandy Point generally have greater side setbacks than proposed in this application.  We observed this township contains predominately detached dwellings, except for the attached town houses at 16-20 Ocean View Parade.  Our inspection of the abutting streets and wider area revealed side setbacks were generally greater than one metre along one side boundary and wider on the other side boundary to accommodate landscaping.  The lack of regularity of side setbacks contributed to the sense of informality, spaciousness and dominance of landscaping in the township.
84	We are not satisfied that a two metre separation between built form is adequate between the building envelopes.  Whilst we acknowledge there would not be boundary-to-boundary construction, the level of visual separation (i.e. gap) between the envelopes is too small to provide sufficient space for landscaping.  We find the proposed building envelope side setbacks could result in extended built form facing both street frontages within minimal space to provide visual relief, particularly if the dwellings include eaves that overhang into these setbacks.  This is contrary to the design objectives of the overlay which is to protect and manage the coastal village character of Sandy Point.
85	We do not agree with Mr Glossop that there are lesser side setbacks between dwellings to the north of the review site.  We find dwellings north of Ocean View Road, up to Sunshine Rise, generally have larger setbacks to at least one side boundary that provides space around them for landscaping.  We consider this reinforces the variability of setbacks found in the township and sense of spaciousness.  We view the townhouses, to the north-east of the review site, as an anomaly in the township and should not be used to justify the reduced side setbacks in this proposal. 
Frontage Setbacks
86	Council is concerned the front setbacks are slightly less than those found nearby.  It says the front setbacks of the townhouses to the north-east are 7.7 metres, the dwellings on the north side of Ocean View Parade are set back 7-10 metres, and the dwellings on the west side of Park Avenue are set back 11-12 metres.  
87	The SPCG agrees with Council and says the proposed frontage setbacks of 7.5 metres are uncharacteristically low for all developments along the north side of Beach Parade.  It says this will not enhance the function and amenity of the public realm encouraged by policy at Clause 15.01-02.
88	The applicant takes the contrary view and submits the proposed frontage setbacks are respectful of the prevailing pattern of setbacks found in Park Avenue, Ocean View Parade and the broader area.  It says there is sufficient space within the front setbacks to ensure the future dwellings will be nestled within a garden setting that includes landscaping and canopy trees.
Tribunal findings
89	We consider the uniform application of a 7.5 metre frontage setback to all lots a poor design response that fails to acknowledge the irregular range of frontage setbacks found in this area.  We consider front setbacks are generally greater than 7.5 metres and a variety of setbacks would have been more responsive to the existing neighbourhood character and public realm.
90	The frontage setback includes a driveway and underground water tank which constrains its ability to provide vegetation that will be of a scale that will grow to respond to the vegetative character of the township.  We consider the ability to landscape in the frontage has increased importance as there is limited ability for planting along the side boundaries and the rear yard as it contains the effluent dispersal system area.
Location of parking/crossovers
91	The SPCG argues the cumulative impact of the proposed eight crossovers to Beach Parade will further erode the landscape opportunities in the streetscape.  It says that given the modest frontage setback, tandem car parking is not possible unless garaging is incorporated into the building footprint.  It questions whether this will occur given the lots may be developed with three and four bedroom dwellings.  It says that it is likely that owners of the lots may want to widen the crossovers to six metres to accommodate additional car parking in the frontage.  It also considers the setbacks are insufficient for the parking of a vehicle with a boat or jet ski. 
92	The SPCG is also concerned about the site layout as over 100 metres of the frontage could be dedicated to crossovers.  It says this arrangement fails to protect the personal safety in the public realm for families, cyclists, pedestrians and unsupervised children visiting the adjacent commercial area as vehicles will be reversing onto the street.
93	The applicant submits that all lots will be integrated into the street with the provision of a single crossover that will provide safe and convenient vehicle access for each lot.  It says the driveways and crossovers can be designed in a manner that is consistent with the DDO’s expectation for informal driveways and crossovers and can be designed to use permeable materials. 
94	Mr Glossop is not concerned that the building envelopes do not nominate parking areas.  He considers the indicative location of the crossovers shows where car parking areas will be located on each lot.  He does not consider any future car parking structures to be visually dominating given the width of each building envelope can accommodate a garage/carport. 
Tribunal findings
95	The design objectives of the DDO3 include to minimise the dominance of car parking structures and outbuildings in views from the street and other sensitive viewing locations.  The decision guidelines also require consideration of whether car parking structures, outbuildings and driveways are sited such that the visual impact of these structures and works are minimised.
96	The provision of driveways and crossovers in the frontage of each lot inevitably will change the Beach Parade and Ocean View Parade streetscapes from the existing condition that includes one crossover onto the review site.  We are not persuaded by the SPCG’s concerns that the crossovers will be widened to six metres as the subdivision plans shows the indicative crossovers with a maximum width of three metres.  Given the lots have frontages of between 15.9 metres to 17 metres, we find the spacing between the crossovers is consistent with existing residential lots nearby. 
97	As we have previously stated, the frontage setback is constrained due to the provision of the water tank and driveway.  We cannot assume that future owners will incorporate a carport or garage within the building envelope and therefore the driveway may be used for parking in the frontage.  We consider this layout will impact the streetscape character as visible car parking in the frontage is not a characteristic of this township as existing dwellings generally have parking to the side and rear in carports and garages.
98	We acknowledge that replacement of one crossover onto Beach Parade with eight crossovers increases the risk for conflicts between pedestrians and cyclists from vehicles reversing onto the street.  However, provided adequate sight lines are provided, we do not see this as a fundamental concern with this proposal.
99	Overall, we find the proposal fails to meet the design objectives of the DDO3 which is to minimise the dominance of car parking structures and outbuildings on views from the street and other sensitive viewing locations.
Is the tree removal and landscape response acceptable?
100	Our following findings will firstly address how the subdivision responds to the landscape character of the area and secondly, the extent of tree removal.
Tree removal 
101	Council is concerned about the removal of vegetation on the review site and multiple areas of native vegetation in the road reserve.  It says at the time of the decision, it was unclear what the reasons were for the tree removal, whether it be for the defendable space requirements, effluent dispersal system areas, building areas or vehicle access.  It also submits the applicant has not provided an independent peer review of the original tree assessment report for consideration by the Tribunal. 
102	It notes that many of the trees to be removed in the road reserve form part of a patch that is identified in the flora and fauna assessment.  It says this report states that there are no feasible alternatives to avoid removal, and it does not consider alternative design options to avoid and minimise impacts to native vegetation.  
103	Council is concerned that the subdivision relies on external defendable space which would place undue pressure on it to remove roadside vegetation that contributes to the character of the township and foreshore.  It says a design response is required that internalises the defendable space in order to preserve the landscape character attributes of the settlement.  
104	The SPCG argues the substantial loss of native vegetation and consequential habitat loss fails to ensure the subdivision provides landscaping that responds to its context. 
105	The applicant submits the location of the crossovers has been carefully considered to avoid the removal of vegetation and will not compromise pedestrian movements.  It submitted a revised tree removal plan titled ‘Map 1 – Potential Tree Removal and Retention (31 May 2024)’ prepared by Mr James.  This plan shows:
•	that all road reserve trees can be retained, except for Tree 45. 
•	the retention of trees within the review site that are near the effluent dispersal system areas.  
•	Tree Protection Zones (‘TPZ’) of road reserve trees or boundary trees.
•	Indicative crossovers that are less than 10% of the TPZ of all trees, except for Trees 17 and 47.  
106	The applicant submits a Section 173 Agreement could be applied to any planning permit issued to give effect to this tree retention plan.
107	The applicant relies on the evidence of Mr James.  He says 0.116 hectares of native vegetation is proposed to be removed that includes fragmented and substantially modified remnants of Coastal Dune Scrub (EVC 160) that has a habitat hectare score of 0.31.  He says 0.045 hectares of the native vegetation to be removed is exempt under the fence line clearing exemption at Clause 52.12.
108	Mr James’ native vegetation impact assessment identified the application falls within the basic pathway.  However, he considers the revised layout increases the capacity to reduce native vegetation loss in the road reserve for the construction of the crossovers.   
Tribunal findings
109	Clause 56.03-5 (Standard C6 – Neighbourhood Character) states that subdivision should protect significant vegetation and site features.  Clause 56.06-7 (Standard C20 – Neighbourhood Street Network Street Design) also states the design of streets and roads should include a street detail plan that shows the location of existing vegetation to be retained and proposed treatment to ensure its health.
110	During our site inspection, we asked the applicant to identify the indicative location of the crossovers to ascertain what trees may be impacted by the proposed subdivision.  This information was not clear in Tree Impact Assessment Report submitted with the application.
111	We can understand Council’s initial concerns that the information submitted with the application was unclear.  It is only now that we have a revised tree removal plan that nominates trees to be retained in the road reservation and the review site and their proximity to the single width crossovers and effluent dispersal system areas.  This is a positive step in response to the local policy, ESO7 and Clause 52.17 objectives. 
112	What is missing from this analysis, and the evidence of Mr James, is any assessment and/or recommendations on how the nominated trees can be retained.  For example, the TPZ of Tree 7 (Coastal Banksia – 10-15 metres high) falls over the entire front setback and driveway of Lot 5.  No evidence was presented by Mr James explaining how this tree could be retained given this area includes construction of an underground water tank and driveway.  There are also driveways and water tanks in other lots that are within the TPZ’s of trees growing in the road reserve and frontage of lots.  In other words, we are uncertain whether the works will encroach into less than 10% of the TPZ’s, as suggested by the applicant.
113	Whilst the revised tree removal plan also shows retention of some trees on Lots 6, 7, 8 and 9, which is supported, these trees have TPZ’s that extend over the effluent dispersal system areas.  The Tribunal has not been provided with recommendations regarding measures required to protect these trees during construction or whether it is desirable to have trees adjacent to the effluent dispersal system areas.   
114	Therefore, the applicant’s suggestion for inclusion of a condition for a Section 173 Agreement puts the ‘cart before the horse’ as we are unable to ascertain whether it is feasible to retain these trees with encroachment less than 10% of the TPZ.  
115	We are also concerned the subdivision plan only shows the indicative location of crossovers and driveways.  It will be up to the individual lot owners to determine the location of the driveways and crossovers to suit the design of the dwellings in the building envelopes.  Whilst a Section 173 Agreement may provide some protection for nominated trees, we still have reservations about future tree removal on the basis of the information submitted during the hearing.
Landscape response 
116	Council argues the building envelopes, with limited side setbacks, is an insensitive approach to the environment and landscape character of the township.
117	The SPCG agrees and says the crossovers and necessary 19 metre defendable space zone will erode landscaping opportunities.  It says the loss of vegetation at the street interface and the frontage undermines the coastal landscape.  It submits the proposal does not provide a generosity to preserve the screened and heavily landscaped interface to the street.  
118	The applicant argues the proposal is consistent with the outcomes sought by ESO7 which focuses on protecting the environment, native vegetation and preventing soil erosion.  It submits there is sufficient space around the building envelopes to ensure the dwellings are nestled into a garden setting.  It says in time, the landscaping will provide an important contribution to the landscape character of Sandy Point. 
119	Mr Glossop acknowledges the review site will contain less vegetation than many other properties within Sandy Point.  He states:
I am nevertheless comfortable that this is an acceptable outcome given the Review Site is sparsely vegetated presently, its immediate context and the presence of the BMO. In making this last comment, I have regard to Clause 71.02-3 (Integrated decision making) and the direction that in bushfire affected areas, planning and considerations. 
120	He says that given the constraints for landscaping in a BMO, it would still appear that a tree can be provided in the front and rear of each lot, along with lower-level landscaping.  He considers this will assist in integrating the review site with its surrounds and is potentially an improvement to the existing conditions.  Mr Glossop considers the landscaping would need to be confirmed by a landscape plan but would be sufficient to achieve the environmental objectives of the ESO7 and contribute to the environmental significance of the area.
Tribunal findings
121	The Statement of Environmental Significance at Clause 1.0 of the ESO7 indicates the importance of landscape in coastal settlements such as Sandy Point.  It states:
South Gippsland contains some of Victoria’s most significant coastline areas. The settlements of Venus Bay, Sandy Point, Tarwin Lower and Waratah Bay are situated along this coastline and contribute to the areas appeal by providing accommodation opportunities in environmentally significant areas. They are characterized by their predominance of native vegetation, easily erodable soils and their proximity to foreshore reserves, coastal parks and other public land and their rugged appeal.
122	Whilst this overlay is designed to retain native vegetation, it also contains environmental objectives to protect and enhance the environmental quality of townships.  The decision guidelines also require consideration of the vision, objectives and strategies for Sandy Point that are now within Clause 11.01-1L-09. 
123	We note that a landscape plan has not been submitted with the application.  However, the landscaping guidelines of the County Fire Authority (‘CFA’) state that additional planting is possible provided the plants are greater than ten centimetres in height and are not placed within three metres of a window or glass feature of the building.  It also says canopy of trees must be separated by at least five metres. 
124	Whilst these guidelines will allow for the planting of one canopy tree in the front and rear yard of each lot, we consider this response will not ensure the built form response in the building envelopes will be nestled into the landscape.  We consider this will be a stark contrast to the informal nature of existing dwellings in the township that generally have more than one tree in the frontage and other vegetation along the side setbacks.
125	As previously stated, we find the landscaped setting is a defining feature of the township that attracts both holiday makers and permanent residents.  This is also articulated in the Statement of Environmental Significance for the ESO7 quoted above in paragraph 121.  
126	This view is also held by Mr Glossop and acknowledged by the applicant.  We consider there is inadequate space throughout the site for any meaningful landscaping given the restricted dimensions of the frontage and side setbacks.  We consider the size of the lots is too constrained and the building envelope and effluent dispersal system area too big to provide flexibility in landscaping (i.e. both canopy trees and other vegetation) to maintain the coastal, well-vegetated character of the township.  This is contrary to the environmental objectives of the ESO7 which is to protect and enhance the environmental quality of townships.  
127	We reject the argument posed by the applicant and Mr Glossop that the proposal is acceptable because there is limited landscaping present on the review site.  Both State and local policies require subdivision and future development to provide landscaping to protect and enhance the pattern of well vegetated and generous front setbacks that screen and soften the appearance of development from the street.  Whilst the applicant argues that existing vegetation can be retained on the review site, this is no justification for a response that will not respond to the design objectives of the DDO3 which is maintain the well-vegetated character of allotments.
Bush fire management
128	The review site is within a BMO and therefore assessment of the bushfire hazard is required in accordance with Clause 44.06.  A bushfire management assessment and bushfire management plan (‘BMP’) were prepared by the applicant.  This assessment, conducted by Mr James, concluded the land surrounding the review site is described as Landscape Type 2 as he considered fire is likely to approach from one direction (south). He also considers there are modified and low threat conditions within one kilometre of the review site.  He considers there is also access to areas of refuge within the township.  
129	The BMP proposes a 19 metre wide buffer zone around the proposed lots. This zone consists of the surrounding roads and vegetation in the road reserve.  Mr James concluded that this zone provides reasonable assurance that the areas will remain in a low fuel condition.  The BMP shows all the lots to be constructed to BAL-19, a defendable space of 19 metres from each building envelope or property boundary, the provision of 10,000 litre water tank for each lot and driveway access to building envelopes less than 16 metres from the roadway in an all-weather surface. 
130	The application was referred to the CFA who had no objection to the application.  
131	Council included a ground of refusal that the proposal fails to resolve matters relating to the impact on roadside vegetation in the provision of defendable space.  Mr James considers that it was never the intention to remove vegetation beyond the subdivision boundaries as the BMP requires management for defendable space within the subdivision boundaries.  He considers the surrounding roads are a natural buffer between the subdivision and the hazard vegetation within the coastal reserve.
Tribunal findings
132	We are satisfied the BMP shows the defendable space to be maintained is at a distance of 19 metres or alternatively, to the property boundary.  Whilst we have concerns about the future of roadside vegetation, this is not because of the BMP.  We agree the review site has the benefit of the roads that will act as a buffer to the coastal vegetation to the south and the existing vegetation on the site is highly modified.  We consider the conditions required by the CFA and the BMP acceptably respond to the objectives of Clause 44.06.
Does the subdivision consider flooding?
Framework for flood assessment
133	The review site is not within a Flood Overlay (‘FO’) or a Land Subject to Inundation Overlay (‘LSIO’).  However, the application was referred under section 52 of the Planning and Environment Act 1987 (Vic) to the CMA.
134	The CMA objected in relation to flood risk and climate change risks.  The CMA objected to the proposal on the basis that the egress route from the review site, to a location where emergency relief and recovery services can be accessed, is likely to be subject to flooding and therefore the development would put additional people at risk of an unacceptable flood hazard.
135	Council adopted the objection of the CMA. We note that, the CMA submitted that, if they had further information before them about whether there was intensification of development due to this proposal, they may change their position.  We discuss this further below.
136	The CMA makes decisions about development on floodplains using a consistent decision-making framework.  The CMA refers to the following a summary of the key legislation, Planning Scheme policies and guidelines considered in this application;
•	The Water Act, 1989 (Vic);
•	The Planning and Environment Act,1987 (Vic);
•	Victorian Floodplain Management Strategy (Victoria State Government, 2016)
•	The Planning Scheme:
o	Clause 2.03-3 – Environmental Risks and Amenity
o	Clause 2.03-4 – Natural Resource Management
o	Clause 13.01-1S – Natural hazards and climate change
o	Clause 13.01-2S – Coastal inundation and erosion
o	Clause 13.03-1S – Floodplain management
•	Flood Guidelines - Guidelines for development in flood prone areas (West Gippsland Catchment Management Authority, 2020)
•	Applying for a Planning Permit under the Flood Provisions – A Guide for Councils, Referral Authorities and Applicants (DELWP, 2015)
•	West Gippsland Catchment Management Authority policy for development viability in coastal areas in accordance with the Guidelines for Coastal Catchment Management Authorities: Assessing development in relation to sea level rise (DSE, 2012).
137	The CMA’s Flood Guidelines - Guidelines for development in flood prone areas (‘CMA Guidelines’) include objectives that reflect the decision guidelines associated with the Planning Scheme’s flood provisions, which are used in the assessment of applications.  These include:
a.	Objective 1: Site Safety states that ‘Development must not be located where the depth and flow of floodwaters is hazardous’.
•	This objective ensures that people are not exposed to deep or fast flowing water on their property. 
•	The Authority’s criteria for site safety for subdivision require that all new lots must be flood free during a 1% AEP flood event.
b.	Objective 2: Site Access states that ‘Development must not be located where the depth and flow of floodwaters along the access to or from the property is hazardous’. 
•	This objective ensures that people trying to enter or leave a property during a flood must not be exposed to deep or fast flowing water.  This includes driveways, roads and footpaths that link a property to a refuge area and aims to safeguard emergency workers as well as residents and visitors. 
•	The WGCMA’s criteria for site access for a subdivision require that the egress route from all new lots must have flood depths less than 0.3 metres during a 1% AEP flood event.
138	Objective 2 refers to a ‘refuge area’. The CMA Guidelines define a ‘refuge area’ as ‘a location where emergency relief and recovery services can be accessed’. 
139	The CMA Guidelines also provide the following in relation to subdivisions (Tribunal emphasis added):
Subdivisions 
The WGCMA does not support greenfield development that will result in the creation of new lots that are flood prone or lots that do not have safe vehicle access. All new greenfield residential lots must be flood-free during a 1% AEP flood event and flood depth over the vehicle egress route during a 1% AEP flood event from the property to a refuge area, where emergency facilities are located, must not exceed 0.3 metres. 
The WGCMA supports infill subdivision where flood depth during a 1% AEP flood event does not exceed 0.3 metres over a property or 0.3 metres over the vehicle egress route from the property. Each lot must provide a flood-free building envelope. 
Proposals for the subdivision of flood prone land will need to be supported by a two-dimensional flood study undertaken by a suitably qualified and experienced professional to the satisfaction of the WGCMA. The flood study will need to demonstrate the 1% AEP flood extent and depth of flooding for all waterways on the proposed development site and that the proposal meets the relevant safety criteria for the subdivision. 
Proposals for subdivision must also consider the health and protection of any floodplain areas, designated waterways and wetlands, as well as management of stormwater.
140	The Guidelines for Development in Flood Affected Areas (DELWP, 2019) (‘DELWP Guidelines’) are generally applied by local governments and/or floodplain authorities to assist in exercising good floodplain management with respect to planning referral decisions within areas at potential risk from flooding. 
141	The DELWP Guidelines do not represent a strict standard or criteria that must be achieved in every case.  Paragraph 4 of the guideline introduction states:
Floodplain managers have discretion to vary from the guidelines, considering local circumstances, the nature of the development proposal and the flood risk.
142	Some floodplain authorities, including the CMA, have adopted their own floodplain development guidelines that are based on the state guidelines and vary in some respects. 
143	The DELWP guidelines outline four key objectives against which proposed developments can be assessed.  These objectives aim to:
a.	Protect human life and health and provide safety from flood hazard.
b.	Minimise flood damage to property and associated infrastructure.
c.	Maintain free passage and temporary storage of floodwaters.
d.	Protect and enhance the environmental features of waterways and floodplains.
Flood hazard
144	Mr Bishop provides the following summary of the flood hazard associated with the proposed development:
The Subject Site is elevated at about 4.5 m AHD (approximate to height above sea level), behind a large primary coastal dune with a crest height of up to 25 m AHD. There is no waterway or riverine floodplain that impacts the site. The only potential for inundation of the site is from local stormwater. As there is no broader stormwater catchment contributing to the site, and depths of stormwater would only be a few centimetres at most under extreme storm conditions.
145	The flood risk assessed by the applicant and the CMA in this matter is associated with the coastal flooding of Sandy Point Road which provides access into the entire Sandy Point Township.
146	The figure below shows a longitudinal profile of the access route to Sandy Point via Sandy Point Road and Telopea Drive.  This highlights there is one area where the road is lower and susceptible to coastal inundation under extreme flood conditions in 2100.  It is noted that there is no risk of inundation to the road under current conditions.
Figure 5 – Longitudinal Section along access route to/from Sandy Point (A to B)

147	The low section of Sandy Point Road is around 350 metres in length and starts about 300 metres west of the Telopea Drive intersection with Sandy Point Road, extending to the west.
148	The Hazard Vulnerability Classification for the low section of Sandy Point Road is a matter of dispute between the parties.
149	The applicant says that the flood depth is less than 0.3 metres. 
150	The CMA accepts the applicant’s flood modelling but says that the appropriate scenario for consideration is one where potential levee failure is taken into account, which could lead to flood depths of over 0.3 m (H1 Hazard Vulnerability Classification from the Australian Disaster Resilience Handbook Collection guideline 7-3 Flood Hazard) and therefore Sandy Point Road could be unsafe for small vehicles.
Figure 6 - ARR (2019) Combined Flood Hazard Curves

Flood assessment
151	The applicant conducted flood modelling to assess the low section of Sandy Point Road. ‘Future climate scenario 3’ (‘FCS3’) was adopted from the Final Report Inverloch Region Coastal Hazard Assessment – Summary Report, by Water Technology for Department of Environment, Land, Water and Planning, 30 June 2022 (‘Inverloch LCHA’) with a combined storm surge (1% AEP) plus Sea Level Rise (SLR) level (0.8 metres consistent with state policy) giving a total peak sea elevation of 3 metres AHD. 
152	The maximum water depths along Sandy Point Road for FCS3 is summarised in the table below.

Figure 7- Maximum water depths along Sandy Point Road for FCS3

153	The inundation map for FCS3, showing water depths along Sandy Point Road, is provided in Figure 8 below.
Figure 8 - Inundation map for FCS3 showing water depths along Sandy Point Road

154	Results of the flood modelling show that peak inundation depths on Sandy Point Road, for the 1% AEP design storm for the 2100 climate change scenario (FCS3 scenario (3.0 metres max storm tide)) (‘1% AEP flood event’) would be less than 0.27 metres.  This is less than the CMA’s criteria for site access to a subdivision, which requires that ‘the egress route from all new lots must have flood depths less than 0.3 metres during a 1% AEP flood event’.
Levee Sensitivity Assessment
155	The sensitivity of the results to potential levee failure (of the coastal protection levee around Shallow Inlet) was assessed by the applicant at the request of the CMA.  The scenarios and results are summarised in the table below.
 	Figure 9 - Maximum water depths and durations along Sandy Point Road for levee failure scenarios

156	Results of the flood modelling show that peak inundation depths on Sandy Point Road, for the 1% AEP design storm under a range of 2100 climate change scenarios, including potential failure of the existing coastal levee, would be less than 0.5 metres.
157	The worst case scenario would be scenario 2. Scenario 2 is the FCS3 scenario (3.0 metres max storm tide) with a 20% reduction in levee height.  Scenario 2 would result in a maximum water depth of 0.47 metres at Sandy Point Road for approximately 2 hours and 30 minutes. 
158	Mr Bishop gave the following evidence in relation to this sensitivity testing:
•	the duration of water depth exceeding 0.3 metres at Sandy Point Road is relatively short compared to other natural hazard phenomena such as riverine floods, meaning that access restrictions would only be for short periods under these extreme circumstances in 2100; and
•	the maximum depth is less than 0.5 metres, which is the threshold for larger vehicles including 4WD and emergency service vehicles.
159	Mr Bishop’s evidence is that under 2100 conditions (FCS3) there will be safe access (i.e. water depths over Sandy Point Road of less than 0.3 m) to and from Sandy Point, assuming current road and levee conditions.  Further, sensitivity testing of scenarios where lowering of the levees and breaches may occur, demonstrate that safety thresholds are not significantly impacted and are within a tolerable range (i.e. water depths over Sandy Point Road of less than 0.5 metres).
160	Mr Bishop gave evidence that in the future, more likely scenarios are that either the road will be raised, the levees strengthened and raised, or some combination of both.  These scenarios are not likely to be prohibitively expensive and are considered practical adaptation measures that would protect the many 100’s of residences in Sandy Point.
Intensity of development
161	The relative intensity of the site use before and after the subdivision is relevant to the consideration of flooding.
162	In relation to the intensity of development, the CMA made submissions that ‘the creation of the lots gives long-term permission to use and develop the land for residential development’ and that ‘this represents an increase in the intensity of use as it gives approval for this land to be permanently occupied whereas a caravan park does not allow permanent residency’.
163	The Council made submissions that occupancy rates in Sandy Point are very low at less than 20%.  The Coastal Strategy provides the following figure which summarises, based on 2021 census data, the occupancy rates of private dwellings in South Gippsland, including for Sandy Point.
Figure 10 - Occupancy Rates of Private Dwellings

164	The figure shows the Sandy Point population of approximately 650 dwellings and an occupancy of approximately 12%.
165	The intensity of use between a caravan park and a subdivision can vary significantly based on several factors including the number of residents, duration of stay, and usage patterns.
166	A caravan park generally experiences more variable and potentially higher intensity of use during peak times compared to a residential subdivision, which tends to have a more stable and consistent intensity of use.  However, in this case, we have recent census data that indicates this township currently experiences very low occupancy rates of approximately 12%.
167	Mr Bishop gave the following expert evidence in relation to the intensity of development (noting that this evidence was given in relation to the original 14 lot subdivision, not the current 13 lot subdivision, but that the comments are still relevant):
The proposed subdivision will replace the existing caravan park with a 14 lot subdivision. I understand there are presently approximately 50 cabin/caravan sites on the land. In order for the equivalent number of people to occupy the site there would need to be approximately 3.5 times the number of people in a house as would be the case for a caravan (assuming the same level of overall occupancy). If there was an average of 4 people per cabin/caravan site, there would need to be an average of 14 people per household to have an equivalent total number of people occupying the Subject Site.
In terms of considering flood/coastal risk, I consider the relevant intensity of the site use before and after the subdivision is relevant. It is assumed there are likely to be considerable variations in number of overall occupants of the site under both existing and proposed conditions. This could be related to the mix of ownership for permanent/temporary caravan sites along with status of future houses as either permanent or holiday homes. I assume there is also likely to be significant seasonal variation in the level of occupancy of the site under both the existing and proposed conditions.
Whilst the patterns of home versus cabin/caravan occupation may not be identical, it is reasonable to assume (in the absence of a detailed demographic or social study) they are likely to be well correlated.
From a practical perspective, for the purposes of risk management, it is therefore unlikely that the number of occupants of the site would be greater under the proposed subdivision than under the existing caravan park use. Hence it is reasonable to consider that the overall risk profile and drain on emergency services for example would not be substantially different (and no worse).
168	The applicant’s submissions go further and state the proposed subdivision would not only not increase the intensity but would actually reduce the demand on emergency services.  It provides the following reasoning:
Currently, the caravan park provides accommodation well in excess of what is proposed in terms of the subdivision. The caravan park provides accommodation in 50 caravans/cabins plus tent sites. This is to be contrasted with the proposed subdivision that will provide accommodation in 12 modest homes. The Applicant submits that in a flooding event, the proposed subdivision would reduce the demand on emergency services rather than increase the demand.
169	Given the very low occupancy rates of approximately 12% stated in the Coastal Strategy for Sandy Point, and the township’s variable intensity, we find that the number of people and frequency of occupancy of the proposed 12 dwellings is likely to be no greater than the approximately 50 cabin/caravan sites on the existing caravan park. 
170	The Tribunal accepts Mr Bishop’s evidence that, given it is unlikely that the number of occupants of the site would be greater under the proposed subdivision than under the existing caravan park use, that it is reasonable to consider that the overall risk profile and demand on emergency services would not be substantially different, and no worse.  
Shelter in place
171	Mr Bishop gave evidence that the concept of ‘shelter in place’ is only considered under a worst-case scenario where, during the 1% AEP design storm for the 2100 climate change scenario (FCS3 scenario (3.0 metres max storm tide)) event, the levee has failed and there is water greater than 0.3 metres over Sandy Point Road for a maximum of 2-3 hours (i.e. scenarios 2, 5 and 6 shown in Figure 9 above). 
172	Mr Bishop gave evidence that there is safe access/egress to and from the township during the 1% AEP flood event (without the levee failing).  However, he said that the ability for residents to ‘shelter in place’, if the levee were to fail during the event, gives him comfort that, even in a worst-case scenario, the residents would still be safe and there is unlikely to be an additional burden on emergency services. 
173	Further, when questioned by the Tribunal, Mr Bishop agreed that, in this instance, his reference to ‘shelter in place’ could be read as ‘shelter in township’ as the residents would still have safe access/egress to and from their houses and within the township of Sandy Point.  
174	Mr Bishop gave evidence that occupants of the lots within the review site will not be isolated from neighbours or the community.  In the unlikely event of an extreme storm-tide event (several decades into the future) in conjunction with a levee failure, the occupants will have safe access/egress to and from the local township including the shops and amenities including the Sandy Point Community Centre.  All the town’s residents will be able to shelter in the town (without being confined to their individual houses) and access community facilities including the local community centre in Sandy Point.  Further, the period of shelter within the township would only be for a maximum of approximately 2-3 hours.
175	The parties agree that the Sandy Point Community Centre has been designated as a Neighbourhood Safer Place (Place of Last Resort), however, they disagree whether the purpose also includes use as a place of shelter during flood events.
176	The CMA submits that the South Gippsland Municipal Emergency Management Plan makes the following statement about Neighbourhood Safer Places (Places of Last Resort): 
Neighbourhood Safer Places (Places of Last Resort) and Community Fire Refuges NSPs are not part of any shelter in place or evacuation strategies. They are places of last resort; (where other plans have failed or cannot be followed) where a person’s prospects of survival may be better than other places, but cannot be guaranteed. NSPs are identified buildings or spaces within the community that may afford some protection from radiant heat, the biggest killer during bushfire. They are designated and signposted by Council and meet guidelines issued by the Country Fire Authority and the criteria of the South Gippsland Shire Municipal Neighbourhood Safer Places Plan.
177	The CMA submits that the Sandy Point Community Centre has been set up as a place of last resort for bushfire, not for isolation due to flooding.  The CMA also submits that the Sandy Point Community Centre does not have ‘emergency relief and recovery services’, which is a requirement of the CMA guidelines.  
178	Given that this is really an instance of ‘shelter in township’ (as opposed to ‘shelter in place’, which often refers to staying in a building) we consider it appropriate in these circumstances because:
•	this scenario only occurs when during the 1% AEP flood event, in conjunction with when the levee has failed; 
•	water greater than 0.3 metres is only over Sandy Point Road for a maximum of only 2-3 hours;
•	the residents would not be confined to their individual houses, but rather have access to the township; and
•	the residents will not be isolated from neighbours or community amenities including the neighbouring shops and Sandy Point Community Centre. 
179	Ultimately, whilst there is safe access/egress to and from the township during the 1% AEP flood event, there is the ability for residents to ‘shelter in township’ if the levee were to fail during that event.  This gives us comfort that, even in a worst-case scenario, the residents would still be safe and there is unlikely to be an additional burden on emergency services. 
Findings on flooding
180	We accept the evidence of Mr Bishop that it is unlikely that the number of occupants of the site would be greater under the proposed subdivision than under the existing caravan park use.  We say this with the benefit of the 2021 census data contained within the Coastal Strategy that shows that this township currently experiences very low occupancy of approximately 12%.
181	Further, we accept Mr Bishop’s evidence that there is no significant flood risk at the subject site that should prevent the subdivision of the land. We accept the evidence that:
•	There is safe access/egress to and from the township during the 1% AEP flood event.  Maximum flood depths over Sandy Point Road would be less than 0.3 metres (H1 Hazard Vulnerability Classification, generally safe for people, vehicle and buildings).
•	Under coastal levee failure scenarios, maximum flood depths over Sandy Point Road would be less than 0.5 metres (H2 Hazard Vulnerability Classification, unsafe for small vehicles but still traversable by larger vehicles including 4WD’s).  In this unlikely event, they will be able to ‘shelter in township’ and access community facilities including the local community centre in Sandy Point.  The period of time would only be for a maximum of approximately 2-3 hours.
182	We are satisfied that the risks associated with flooding have been properly identified and considered.  Specifically, the risk of the floodwaters via the access along Sandy Point Road to or from the township has been considered. 
183	For the reasons given above, flood risk is not be a reason to refuse planning permission.
184	To the extent that it was raised as an issue, we are also satisfied that appropriate stormwater management of the site can be achieved.  We accept Mr Bishop’s evidence that stormwater management for the site can be readily managed through standard conditions applied in a planning permit to the satisfaction of Council.
Can all wastewater be treated and retained within the lots?
185	Whilst the planning permit application is not for the construction of dwellings, in assessing the application for subdivision, Clause 65.02 of the Planning Scheme requires consideration (as appropriate) of the existing use and possible future development of the Land and nearby land. In addition, given the Land is not sewered and no provision has been made for the land to be sewered, consideration should also be given to the capacity of the land to treat and retain all wastewater within the boundaries of each lot.
186	Pursuant to the TZ, use for a dwelling is as of right if the requirements of Clause 32.05-3 of the Planning Scheme are met.  This clause requires that, if reticulated sewerage is not available, all wastewater from each dwelling must be treated and retained within the lot in accordance with the requirements of the EP Regulations under the EP Act.  The subdivision plan provided in ‘Figure 1 – Proposed Subdivision’ shows an ‘Available waste disposal area’ for each of the 12 lots shaded in stippling.  The notes on the plans indicate:
•	Lots 1-8 to be 3 bedroom capable with:
•	169sqm available for waste field.
•	150sqm building envelope.
•	Lots 9-12 to be 4 bedroom capable with:
•	210sqm available for waste field.
•	150 sqm building envelope.
187	These areas are referred to in the expert evidence of Mr Krainz interchangeably as ‘Land Application Area (LAA)’, ‘Wastewater Envelope Subsurface Irrigation’, ‘irrigation area’, ‘area for application of effluent’, ‘effluent dispersal area’, ‘area required for the wastewater fields’, ‘wastewater field area’, and ‘effluent dispersal system (EDS) area’. 
188	Mr Whitehead refers to these areas interchangeably as ‘irrigation area’, ‘effluent management area’, ‘wastewater disposal areas’, ‘land application area (LAA)’, ‘effluent disposal area’, and ‘dispersal areas’.
189	For clarity and consistency, we have adopted the terminology used in the EDRS Guidelines, which is ‘effluent dispersal system area’ or ‘EDS area’.
Effluent dispersal system area
190	The applicant relied on the expert evidence of Mr Krainz, who prepared the Land Capability Assessments for the subdivision, which was subsequently amended.  He considers the effluent dispersal system areas are suitably sized and sited on the proposed lots.
191	Mr Whitehead initially had concerns with the calculations provided by Mr Krainz and considered that the Land Capability Assessments undersized the effluent dispersal system areas.
192	However, after the submission of two addendums to the evidence (primarily required to address the introduction of the new EDRS Guideline and GOWM), by the end of the hearing, Mr Whitehead and Mr Krainz were in agreement about a version of the calculations for the effluent dispersal system areas. 
193	We address each of the issues raised by Mr Whitehead in turn, as follows:
•	Rainfall Runoff Factor.
•	Design flow rates for households.  
•	Effluent dispersal system area sizing method.
Retained Rainfall Runoff Factor
194	Mr Krainz’s initial water balance calculations in the LCA used a Retained Rainfall coefficient of 0.8.  The Retained Rainfall coefficient represents the percentage of incident rainfall falling on the land application area which enters the land application area and therefore must be considered by the water balance.
195	Mr Whitehead’s evidence was that the LCA Framework recommends a value of 1.0 (100% retained rainfall) for effluent dispersal systems on flat ground in sandy soils.  Further, Mr Whitehead stated that the use of the lower value of 0.8 has the effect of reducing the retained rainfall value in the water balance, which in turn reduces the effluent dispersal system area.   Ultimately Mr Krainz presented two sets of calculations for consideration by the Tribunal, one using a Retained Rainfall coefficient of 1.0 and another using a Retained Rainfall coefficient or 0.8.
196	We prefer Mr Whitehead’s evidence over Mr Krainz’s evidence in relation to the appropriate Retained Rainfall.  We consider the use of a Retained Rainfall coefficient of 1.0 is appropriate for this site as it is consistent with the value provided in the LCA Framework for a flat site with sandy soils.  
Design flow rates for households  
197	Table 4-1 of the GOWM provides design flow rates (expressed in litres per person per day) for households to calculate daily household wastewater generation, depending on sewage source and type of fixtures as shown in the table below.

198	The parties disagree about which design flow rate was applicable to the proposed households on the subject land.
199	Mr Krainz gave evidence for the applicant that the proposed dwellings would be using an onsite roof water tank supply and that a condition could be included to ensure that all households would be fitted with WELS scheme fixtures and fittings.  As such, he gave evidence that the applicable design flow rate should be 120 L/person/day, and his design calculations used that design flow rate.
200	Council submitted that, given that the definition of ‘reticulated water supply’ in the footnote to the table includes groundwater bores, and there is a chance that the proposed lots would one day install a groundwater bore (or fill their tank using another local groundwater bore), the applicable design flow rate should be 150 L/person/day.
201	We are not persuaded by Council’s argument. There are many ways that a tank supply can be replenished, including by trucking in water.  On that basis there would never be a scenario where the ‘onsite roof tank supply’ design flow rate would apply. 
202	We consider the applicant’s approach to be a more likely scenario and the more appropriate interpretation of Table 4-1 of the GOWM. 
203	Further, Table 4-10 of the GOWM provides guidelines on recommended setback distances for OWMS. Given that no bores would be permitted within 20 metres of the effluent dispersal system area on each lot, there is no possibility of a bore being approved to be installed on one of the proposed lots.
204	Further, the applicant submitted that all existing groundwater bores on the subject site will be decommissioned prior to the completion of the subdivision.
205	The applicant was also willing to include a condition on any potential permit to ensured that all households would be fitted with WELS scheme fixtures and fittings and that no groundwater bores could be installed on the land. 
206	As such, we agree with the applicant that the applicable design flow rate should be 120 L/person/day.
Effluent Dispersal System Area Sizing method  
207	The EDRS Guideline provides guidance on effluent dispersal system area sizing.  There are three methods for sizing effluent dispersal system areas – the simple hydraulic equation, water balance calculation and nutrient balance sizing method.  The EDRS Guideline states that best practice is to calculate all three methods when sizing an effluent dispersal system area to determine the most limiting design factor (hydraulic, nitrogen or phosphorus limited). 
208	Mr Krainz provided table summaries of the effluent dispersal system area sizing methods for the effluent dispersal system area including a simple hydraulic equation, water balance calculation and nutrient balance calculation to identify the most limiting factor to be applied. 
209	Mr Krainz provided two options for plant uptake from the table of plant species provided in the EDRS Guideline.  Approximate phosphorus plant uptakes of 80kg for Rye Grass and 50kg for Rye/Clover were considered. Figure 11 provides the table with a phosphorous balance using 50kg Rye/Clover. Figure 12 provides the same calculations but with a phosphorous balance using 50kg Rye/Clover.
Figure 11 – Water Balance, Nitrogen Balance, Phosphorus Balance (80kg Rye Grass) and Phosphorus Reduction (Taylex Concrete ABSNR+P 1350, 96% Phosphorus Reduction) using retained rainfall runoff factor of 1.0 

Figure 12 – Water Balance, Nitrogen Balance, Phosphorus Balance (50kg Rye/Clover) and Phosphorus Reduction (Taylex Concrete ABSNR+P 1350, 96% Phosphorus Reduction) using retained rainfall runoff factor of 1.0 

210	We note that calculations in these tables used a Retained Rainfall coefficient of 1.0 and a design flow rate should be 120 L/person/day.
211	Both Mr Krainz and Mr Whitehead agreed on these calculations for simple hydraulic equation, water balance, and nitrogen balance. 
212	Both Mr Krainz and Mr Whitehead also preferred Mr Whitehead’s approach to the phosphorous balance calculation.  Mr Whitehead’s evidence was that the phosphorous balance should be 223.5m2.  However, both experts agreed that the final column in the tables, relating to phosphorous reduction, is acceptable as it is generally in accordance with Mr Whitehead’s evidence of approximately 10m2. 
213	The tables above show that, even using a conservative crop factor of 50kg/ha, the area required for phosphorous reduction (when using the Taylex ABSNR+P Advanced secondary wastewater system with 96% phosphorus reduction) reduced to 11m² for proposed Lots 1-8 or 13m² for proposed Lots 9-12.
214	The calculations provided by Mr Krainz and Mr Whitehead show that phosphorus is initially the most limiting factor in sizing the effluent dispersal system area.  However, if a Taylex ABSNR+P Advanced secondary wastewater system (with 96% phosphorus reduction) is included, the water balance becomes the most limiting factor to size the effluent dispersal system area. 
215	The water balance area calculation results in an area of 162m² for Lots 1-8 and 203m² for Lots 9-12.
216	The proposed subdivision plan provides effluent dispersal system areas for each lot which are larger than the required water balance area.  Lots 1-8 provide a 169 square metre effluent dispersal system area which can accommodate a three bedroom dwelling.  Lots 9-12 provide a 210 square metre effluent dispersal system area which can accommodate a four bedroom dwelling. 
217	We accept the evidence before us that all wastewater from each contemplated future dwelling can be treated and retained within the lot in accordance with the requirements of the EP Regulations under the EP Act for an on-site wastewater management system. Wastewater management is not a reason to refuse planning permission.
Easements E-1 and E-2
218	Mr Round and Ms Allanach raised concerns related to the future use of easements E1 and E2.  They own townhouses in and represent the Owners Corporation for 16-20 Ocean View Parade.
219	The certificate of title for Lot A shows the existing Lots 1 to 8 on land adjoining to the north-east.  These existing eight lots are comprised of Lots 1 to 3, which have three existing dwellings on them, and Lots 4 to 8, which are five vacant lots.  These existing eight lots are serviced by a wastewater system located on proposed Lot 13, which is demarked by easements E-1 and E-2.
Figure 13 – Certificate of title for Lot A 

220	Council provided a summary of previous planning approvals for the Subject Land and made the following submissions about E-1 and E2:
The western portion of Lot A is encumbered by easement E-1 and E-2 which has the purpose “Water disposal by either under-ground soakage system and/or above ground irrigation system” which benefits Lots 1-3 and the common property on PS537365N. E-2 currently has no infrastructure but will be required as part of the development of PS537365N/D1. 
221	Mr Round and Ms Allanach’s interest in this proceeding is to ensure that their properties have continued, and secure, access to the Sewerage Treatment Plant located in easement E-1. 
222	As part of this application, it is not proposed to include a building envelope or effluent dispersal system area on Lot 13.  Lot 13 will be undeveloped and provide land for Easement E-1 & E-2.
223	The applicant submits the proposal will ensure that access will be secured by locating easement E-1 in Lot 13.  The applicant has executed a Service Agreement with these owners and is willing to enter into a Section 173 agreement with the Council to give comfort to Mr Round and Ms Allanach.  The applicant submits that the section 173 Agreement could be secured by way of a condition in the subdivision permit.
224	Mr Round also raised concerns that the effluent dispersal system area available for the existing sewerage treatment plant located on easement E1 in Lot 13 of the proposed subdivision is likely to be undersized and would not comply with current regulations.  Mr Round submitted that:
Based on the number of bedrooms likely for the 8 allotments in the Stage 2 subdivision that will be serviced by the STP, and comparing this to the effluent disposal areas that are provided for the proposed subdivision lots as stated in Mr Krainz Addendum Report, it is obvious that even the area of existing Easements E1 and E2 will be significantly undersized for effluent disposal (refer to below calculation of effluent disposal areas). Additional land will be required and logically this would mean consuming either Lot 12, or lots 4 and 5 of the Stage 2 subdivision for the purpose of effluent disposal. Debate over the amount of land required would be ended and the exact amount of land required would be confirmed by the issue of a license by the EPA for the STP.
225	Mr Round also sought the inclusion of the following conditions on any permit issued:

226	Whilst we can understand Mr Round’s concerns, setting aside additional land (including either Lot 12 of the proposed subdivision or existing Lots 4 and 5) for the purpose of effluent dispersal of the existing eight lots to the north-east of the subject land is not before us in this proceeding.  The consideration of an obligation to provide wastewater treatment and disposal services for the existing eight lots to the north-east of the subject land is also outside our remit.
227	What is before us is to ensure that the easements are available for their intended use, which is ‘Water disposal by either under-ground soakage system and/or above ground irrigation system’ which benefits Lots 1-3 and the common property on PS537365N.  It is not before us to consider whether these easements have been adequately sized as part of the previous subdivisions of Lots 1-8. 
228	There is no requirement for the proposal before us to consider the effluent dispersal needs of dwellings that are not on the subject land, other than through the consideration of the existing easements.  The existing easements are suitably considered by the proposed subdivision as proposed Lot 13 is demarked by easements E-1 and E-2 and will be undeveloped.
Conclusion
229	We acknowledge the review site in a TZ which is designed to accommodate residential development.  However, we find the proposal does not acceptably respond to the range of policies which are designed to protect and manage the coastal village character of Sandy Point.  We therefore conclude the proposal will not result in net community benefit.  
230	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Jane Tait
Member		Claire Bennett
Member