VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1657/2023
Permit Application no.5.2023.100.1 	
CATCHWORDS	
Section 82 of the Planning and Environment Act 1987 (Vic); East Gippsland Planning Scheme; General Residential Zone Schedule 1; Construction of two dwellings on a lot and subdivision of land into two lots; Planning Policy; Neighbourhood Character	

Applicant	Michelle Wood, Alan Baird & Others	

Responsible Authority	East Gippsland Shire Council	
Respondent	Melinda Aloisio & Ioanna Sakellaropoulos	

SUBJECT LAND	12 The Backwater
EASTWOOD VIC 3875	

HEARING TYPE	Hearing	
10 S
DATE OF HEARING	10 September 2024	

DATE OF ORDER	30 September 2024	

CITATION	Wood v East Gippsland SC [2024] VCAT 1046	

Order
Permit granted
1	In application P1657/2023 the decision of the responsible authority is varied. 
2	In planning permit application 5.2023.100.1 a permit is granted and directed to be issued for the land at 12 The Backwater Eastwood VIC 3875 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
Planning scheme clause	Matter for which the permit has been granted

	
Clause 32.08-3 	To subdivide land	
Clause 32.08-7	Construction of two dwellings on a lot.	

Katherine Paterson
Member			

Appearances
For Applicant	Michelle Wood and Wayne Stag in person	
For Respondent	Jack Chiodo, Solicitor, Jackson Lane Legal	
For Responsible Authority	Robert Pringle, Town Planner, East Gippsland Shire Council	

Information
Description of proposal	Construction of two dwellings and a two lot subdivision	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	East Gippsland	
Zone and overlays	General Residential Zone Schedule 1
The land was formally in an Erosion Management Overlay – it was recently removed from the site by Amendment c167egip on 31 July 2024	
Permit requirements	Clause 32.08-3 – Subdivide Land
Clause 32.08-7 – Construct two or more dwellings on a lot	
Land description	The subject land is formally described as Lot 93 on Plan of Subdivision 521909M, and is 2,056 square metres in area, and almost rectangular in shape.  The site is immediately adjacent to the Clifton Creek ‘Backwater’ which forms part of the Mitchell River Reserve.  The site is vacant and devoid of vegetation.    	
Tribunal inspection	24 October 2024   	
Cases Referred to	Elliot v East Gippsland SC & Ors [2013] VCAT 942, Elliott v East Gippsland SC [2015] VCAT 64, Rykers v East Gippsland SC [2016] VCAT 828	

Reasons
What is this proceeding about?
1	Melinda Aloisio & Ioanna Sakellaropoulos wish to construct two dwellings and subdivide land into two lots on land at 12 The Backwater Eastwood.  Following the decision of East Gippsland Shire Council to determine to grant a planning permit for the development, the applicant for review has requested that the Tribunal review this matter.  
2	This is not the first time that the Tribunal has considered an application to construct dwellings or subdivide land in The Backwater.  In 2013, The Tribunal in Elliot v East Gippsland SC & Ors [2013] VCAT 942 refused to grant a planning permit for the subdivision of 26 The Backwater into two lots in a battleaxe shape.  A second application to subdivide 26 The Backwater into two identical lots (side by side) was also refused in 2015 in Elliott v East Gippsland SC [2015] VCAT 64.  In 2016 the Tribunal in Rykers v East Gippsland SC [2016] VCAT 828 refused an application to subdivide 50 The Backwater into two battle shaped lots, which would retain the existing dwelling at the rear. 
3	This application differs from those previously considered by the Tribunal in that it is an application to construct two side by side dwellings as well as subdivide the land into two lots.  Unlike the previous decisions the intended built form outcome for the site is known.  
4	Despite this difference, the applicant for review is concerned that the development of two dwellings on this lot is inconsistent with the outcomes sought for the Eastwood Estate.  They submit that it was always the intention that the larger lots in this section of the estate would be for single dwellings only.  They are concerned that the proposed design of the development is inconsistent with the neighbourhood character of the area and would set a precedent for further subdivisions within the estate.  
What are the key issues?
5	Having considered all the submissions and evidence and inspected the subject land and its locality I am of the opinion that the key issues in this proceeding are: 
•	Is the subdivision of this lot consistent with the planning outcomes sought for The Backwater?
•	Is the proposal respectful of the neighbourhood character? 
Is the subdivision of this lot consistent with the planning outcomes sought for The Backwater?
Restrictions on title
6	In submissions to the Tribunal, Mr Stag stated that he had sought confirmation from the original developer of the estate as to the intention for the larger lots in this section of The Backwater was that the larger lots would be developed for single dwellings.  This view is not reflected in the restrictions that have been placed on the title to the land.
7	The site is burdened by two restrictions on title which were outlined by the responsible authority in the PNPE2 material as follows:
Restrictive Covenant AD669436F places restrictions on the construction of dwellings, including a minimum building footprint, external materials and finishes, outbuilding materials and finishes, removal of soil from the land, prohibition on use of the land for offensive or noxious purposes. This covenant has no expiry and continues to run with the land. 
Section 173 Agreement P750361X was registered on the title to the land and was to ensure the Eastwood Residential Estate was developed as a serviced residential estate in accordance with the development plan contained in Schedule 2 of the agreement. The agreement contains a “sunset clause” that states: 
“Subject to the Company having carried out and completed all its covenants and agreements hereunder to the reasonable satisfaction of the Responsible Authority the Agreement shall lapse upon the completion of the development specified in schedule 2 hereto” 
Correspondence dated 26 September 2012 from East Gippsland Shire Council confirms that the development of Eastwood Residential Estate is considered to be complete, and the Agreement is deemed to have lapsed, with no further effect on land within the Eastwood Residential Estate. 
In the opinion of the Responsible Authority, the grant of a permit would not result in a breach of the covenant.
8	It was common ground at the hearing that the proposal would not result in a breach of the covenant on the land.  I agree, noting that the covenant expressly contemplates the construction of single dwellings or duplexes on the burdened lots.  
9	It was open to the developer at the time of the creation of the covenant to restrict the number of dwellings on the lots within The Backwater to single dwellings, however this did not occur.  It follows that an application for two dwellings is not prevented by either the restriction on title or the Section 173 Agreement that applies to the land.
Planning Policy
10	Clause 02.01 notes that in 2017, there were more than 46,000 people living and working in the East Gippsland Shire and this is forecast to grow to about 50,500 by 2027 and 56,000 by 2037.
11	Eastwood is a township located to the immediate north of Bairnsdale and the Mitchel River.  Mapping within the planning scheme places Eastwood within the regional centre of Bairnsdale.  
12	Clause 02.03-2 contains settlement and housing strategies for the identified growth area towns which include Bairnsdale, which states:
•	Encouraging population growth and development on fully serviced residential land in the growth area towns. 
•	Encouraging a range of housing types and styles including higher density dwellings in town centres.  
13	Clause 11.01-1S supports the sustainable development of Bairnsdale which is identified as one of Victoria’s regional centres.  This policy is echoed at a regional level at Clause 11.01-1R which supports urban growth within Bairnsdale.  At a local level, Clause 11.01-1L-01 includes the following housing strategies for East Gippsland:
•	Encourage infill or incremental development of existing towns in preference to dispersed development.
•	Encourage the consolidation of existing township areas through the development and subdivision of existing lots.
•	Support residential infill development within existing residential zones.
•	Support medium density development for tourist and residential use in residential zones.
14	Clause 16.01-2L contains specific policies for the location of residential development within the East Gippsland Shire which are:
•	Facilitate development in residential areas near the Mitchell River and the Mitchell River Backwater that complement the environmental and landscape characteristics of the active floodplain. 
•	Encourage residential development in locations that minimises negative impacts on the Shire’s urban waterways.
15	It is clear that the East Gippsland Planning Scheme encourages the development of sites within the existing residential areas of Bairnsdale, including The Backwater.  I find that the development of this site for two dwellings is supported by the housing policies within the scheme.  
General Residential Zone Schedule 1
16	The strong support for the development of housing on this site is reflected in its inclusion within a General Residential Zone Schedule 1, the purposes of which include:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To encourage development that respects the neighbourhood character of the area.
•	To encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport.
17	Whilst the development of additional housing on this site is supported by housing policy, the purpose of the zone also requires a consideration of neighbourhood character.  I will consider this aspect of the proposal next.  
Is the proposal respectful of the neighbourhood character?
18	Clause 55.02-1 of the East Gippsland Planning Scheme has the following objectives:
•	To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.
•	To ensure that development responds to the features of the site and the surrounding area.
19	Clause 15.01-5S includes the following strategies:
Ensure development responds to its context and reinforces a sense of place and the valued features and characteristics of the local environment and place by respecting the:
•	Pattern of local urban structure and subdivision.
•	Underlying natural landscape character and significant vegetation.
•	Neighbourhood character values and built form that reflect community identity.
20	No neighbourhood character objectives are provided in the schedule to the GRZ1.  Clause 15.01-1L-01 of the scheme provides some guidance as to the preferred urban design outcomes for East Gippsland and includes the following strategies:
•	Encourage high standards of design in urban areas, coastal and lakeside areas, areas of high landscape quality, and land adjacent to parks and reserves.
•	Design development to be in keeping with landscape and town character.
•	Avoid overshadowing by buildings of foreshores and other public areas.
21	There is no doubt that the Eastwood is a well designed estate that has developed a special character which responds well to its ‘Backwater’ location.  This special character is reflected in descriptions of the area provided in the previous decisions of the Tribunal.  In Elliot v East Gippsland SC & Ors [2013] VCAT 942 the Tribunal described the character of The Backwater as follows:
The Backwater
[11]	The Backwater is the name of the street that runs parallel with a section of the backwater of the Mitchell River and a public reserve and walkway along the water’s northern boundary. Lots on the north side of the street are much smaller than the large, deep and slightly wider lots on the south side of the street. Lots on the south side of the street all sit atop of an embankment that falls to the public walkway and River backwater. The street is constructed between Nos. 2 and 60 on the south side, and Nos. 1 and 63 on the north side with each end of the street terminating as a court bowl. A walkway links through to Morton Drive at the eastern end. Three streets feed into the area from the north – Gree Kulluk Place, Mistana Court and Glendon Drive. 
[12]	The majority of lots on the north side of the street have been developed contrasting with the south side that has many more vacant lots. Lots on the north side are between 500 and 1,000 square metres in area whereas lots on the south side of The Backwater are over 1,500 square metres and many are over 2,000 square metres. Lots that have been developed on the south side involve mostly large houses, set well back from the street, and built toward the edge of the escarpment where many appear as substantial two storey forms. Extensive landscaping of the escarpment has occurred on many lots with zig-zag paths leading to the delightful riverside walk. 
[13]	The immediate environs of the site, being lots to the west and east that are fully developed (except for one other vacant lot immediately to the east) have a distinctive and spacious pattern involving large houses with deep setbacks from the street frontage. One house, at No. 32, has a garage and other built form closer to the street but this is the exception in this group of constructed dwellings. There are some high fences along the street frontage but, other than some paling side fences that become post and wire down the escarpment, the lots borrow from one another to maximise the outlook and amenity associated with the River environs. Some sites have wide crossovers. Houses face over the backwater and River flats. They adopt a fairly consistent position that does not include overstepping the escarpment. 
[14]	Mr Hoxley submitted that there is no identifiable neighbourhood character along The Backwater because many, perhaps 40%, of lots are vacant on the south side of the street. I agree that the development of new dwellings in the future may depart from the pattern that has been established around the review site. However, there is logic in how development has occurred and there is an identifiable pattern associated with the site’s immediate context even if future development along the street varies from that. It is a pattern that can readily be identified without a local policy or Overlay.
22	In Rykers v East Gippsland SC [2016] VCAT 828the Tribunal described the area as:
[2]	The front two-thirds or so of the site slopes gently downwards, with the rear third then sloping steeply down to the Mitchell River reserve at the rear. The Eastwood Estate is a relatively new housing estate, with properties on this southern side of The Backwater typically being large, well landscaped lots of over 2000m², with single dwellings set well back from the front boundary. However, the existing single storey dwelling on the subject land is atypical in having a modest setback from the front boundary. 
[3]	Lots on the northern side of The Backwater are considerably smaller, with a typical size of between 500m² and 1000m². Being a fairly new estate, some lots in this area are still vacant, such as the abutting Lot 48 on the west side of the subject land, plus there are houses currently under construction. 
[4] 	The linear reserve area on the same side of the river is open to the public and an attractive area, with a gravel path running along the edge of the river where the land is flatter. There is public pedestrian access in places leading from The Backwater down to this reserve
23	In the intervening years since these decisions, most lots on the southern and northern sides of The Backwater have now been developed with only two lots remaining vacant.  I agree with the earlier findings of this Tribunal and the applicant that the character of this estate is very special and is currently enhanced by the views afforded through the vacant lots towards the river and its environs.  I note that some of the dwellings on the north side have been specifically designed to take advantage of the views available through the vacant lots.  When these sites are developed for one or two dwellings, these views will be significantly altered.  
24	The applicant for review is concerned that the proposal will have a detrimental impact on the character of The Backwater as the development will result in two lots with a substantially narrower frontage and site area than the existing lots that have been established in the southern section of the estate.  Whilst the development will result in two lots with narrower frontages and smaller lot sizes, this does not mean that it is contrary to the character of the estate.  
25	This proposal differs from the previous applications before the Tribunal in that we have a clear built form outcome proposed for the site.  The proposed side by side configuration of the dwellings has distinct advantages over a ‘battle-axe’ configuration in this estate as:
•	The proposed layout of the dwellings, although further forward than its neighbours generally reflects the pattern of development found within the southern side of The Backwater;
•	The use of two crossovers is consistent with other lots within the estate which also have been developed with two crossovers;
•	At first glance the overall form of the dwellings will read as a large two storey dwelling, which is consistent with other larger dwellings on the southern side of The Backwater.  I do have some concerns regarding the appearance of the two double garages, which I will consider later.  
26	The application proposes a smaller front setback of 10 metres than its two adjoining neighbours (approximately 18 and 20 metres respectively) and will sit further forward then its neighbours in the street.  The proposed setback is greater than the minimum 9 metre setback required for this site by Standard B6 of Clause 55.03-1.  In accordance with Clause 55 if a development meets standard B6, it is deemed to meet the objective for that standard.
27	I am concerned that the fact that the dwellings will sit further forward than its neighbours will mean that the double garages will be overly prominent in the streetscape.  To overcome this issue, I have required the garages to be reduced in size to be single garages.  I note that there is more than sufficient space to allow for the parking of at least one vehicle in tandem in the frontage of the site.  With this change in place, I am satisfied that the design of the dwellings is an acceptable response to the character of the area.  
28	A key element of the character of the area is landscaping.  In particular the rear gardens on the southern side have been developed with a unique pattern of paving to access the river down the steep slope, as seen from the Nearmap aerial image below:

Figure 1 – Nearmap aerial image dated 12 February 2024 
29	I have therefore required a landscape plan to be prepared, implemented and maintained as a condition of permit to respond to this character.  
30	With these conditions in place, I find that the proposed development will be an acceptable response to the special character of Eastwood.
Are there any other issues?
31	Another key concern of the applicant for review was that this proposal would set a precedent for the establishment of other similar developments within The Backwater.  In response I note that the housing policies as contained within the East Gippsland Planning Scheme place emphasis on the need to provide for additional housing throughout Victoria, including in The Backwater.  This will no doubt alter the character of the estate overtime.  Whether an application for two dwellings is consistent with the character of the area needs to be considered on a case by case basis.  
conditions
32	Permit conditions were discussed at the conclusion of the hearing and any changes to the conditions reflects those discussions as well as further consideration by the Tribunal.  
Conclusion
33	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Katherine Paterson
Member			
Appendix A – Permit Conditions

Permit Application No:	5.2023.100.1	
address of the land	12 The Backwater
EASTWOOD VIC 3875	

The Permit allows:

Planning scheme clause	Matter for which the permit has been granted

	
Clause 32.08-3 	To subdivide land	
Clause 32.08-7	Construction of two dwellings on a lot.	
Conditions
Compliance with documents approved under this permit
1	At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the responsible authority.
Amended plans
2	Before the development starts, plans must be approved and endorsed by the responsible authority. The plans must:  
(a)	be prepared to the satisfaction of the responsible authority  
(b)	be drawn to scale with dimensions  
(c)	submitted in electronic form  
(d)	be generally in accordance with the plans forming part of the application and identified as Elevations, Project No: 739268/739269, 25/11/2022, Sheet no. 5 of 6, but amended to show the following details: 
i	Materials Schedule amended to show details of screening on the east elevation of the ‘Outdoor Room’ of proposed dwelling 1.  
ii	The garage for each dwelling reduced in size to be a single garage with tandem parking space, with the resultant additional area to be converted to be a habitable room with a window facing the street, and any other consequential changes.  The front, side and rear setbacks of the dwellings are not to be altered.  
Layout not altered 
3	The layout of the development and subdivision must not be altered from the layout on the approved and endorsed plans without the written consent of the responsible authority. 
Landscape Plan
4	Before the development starts, a landscape plan must be submitted to, approved and endorsed by the responsible authority. The landscape plan must: 
(a)	be prepared to the satisfaction of the responsible authority 
(b)	be prepared by a suitably qualified person 
(c)	have plans drawn to scale with dimensions 
(d)	include the following: 
i	layout of landscaping and planting within all open areas of the subject land 
ii	a survey (including botanical names) of all existing vegetation to be retained and/or removed 
iii	buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary 
iv	details of surface finishes of pathways and driveways, with pathways designed to reflect those previously established on the southern side of The Backwater
v	a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant 
vi	details of the location and type of irrigation systems to be used including the location of any rainwater tanks to be used for irrigation 
The responsible authority may consent in writing to vary any of these requirements.
Completion of landscaping
5	Before the development is occupied, the landscaping shown on the approved landscape plan must be carried out and completed to the satisfaction of the responsible authority.  The responsible authority may consent in writing to vary this requirement.
Landscaping maintenance
6	At all times the landscaping shown on the approved landscape plan must be maintained (including the replacement of any dead, diseased or damaged plants) to the satisfaction of the responsible authority.
Agreements under section 173 of the Planning and Environment Act 1987 (Vic)
7	Before the issue of a Statement of Compliance, the development approved under this permit must be constructed to lock up stage or the owner of the land must enter into an agreement with the responsible authority under section 173 of the Planning and Environment Act 1987 (Vic). The agreement must provide the following:  
(a)	Land be developed in accordance with the development approved under planning permit 5.2023.100.1.
The owner of the land must pay all of the responsible authority’s reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.   
Drainage Discharge Plan
8	Before any works commence, a drainage discharge plan must be submitted to and approved by the Responsible Authority.  The plan is to include on site detention structures to ensure that the post development discharge rate from the site does not exceed the predevelopment discharge rate. The approved design must meet the water quality standards required by the ‘Best Practice Environmental Management Guidelines’ and Council’s Infrastructure Design Manual. When approved, this plan will form part of the permit. 
Each Lot to be drained  
9	Prior to the issue of a Statement of Compliance, reticulated stormwater drainage to drain all lots and buildings contained within this development must be provided. 
All stormwater from the development must be conveyed to satisfactory points or areas of discharge approved by the Responsible Authority so that it will have no detrimental effect on the environment of adjoining properties. 
Reticulated stormwater drainage to drain the development must be in accordance with Councils Infrastructure Design Manual.
The approved discharge point for this application is the existing stormwater system located within the drainage and sewerage easement situated in the southern section of the property.
GRA recommendations to be observed
10	The recommendations of the Geotechnical Risk Assessment Waiver Report provided by Chris O’Brien and Company Pty Ltd, Reference No. B23123, Project number 240323, dated 21/03/2023 are to be followed during the site preparation works, the construction of the dwellings and after completion, as specified.   
New Residential Vehicular Concrete Crossings
11	Prior to the issue of a Statement of Compliance, concrete crossovers must be constructed at right angles to The Backwater to suit the proposed driveway for each dwelling, in accordance with the approved design to the satisfaction of the responsible authority.
Refer to the Infrastructure Design Manual for crossover designs. 
Protection of Council Infrastructure
12	Before the issue of a Statement of Compliance any portion of the Council’s existing infrastructure damaged because of work undertaken on the site or associated with the development must be repaired/reinstated to the satisfaction of the responsible authority.
Subdivisions that do not require referral
13	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas (where it is proposed to be connected) services to each lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time. 
All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act. 
Telecommunications 
14	The owner of the land must enter into an agreement with: 
a)	A telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and  
b)	A suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
15	Before issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988 (Vic), the owner of the land must provide written confirmation from:
a)	A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and
b)	A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
Shared trenching 
16	All new services to the subdivision must be placed underground in shared trenching where possible. Design for the installation of services must meet the requirements of the relevant authorities and must be approved by those authorities to the satisfaction of the responsible authority. 
Clean up after build 
17	Upon completion of the development, the land must be cleared of all excess and unused building materials and debris to the satisfaction of the Responsible Authority 
Expiry – Development and Subdivision
18	This permit as it relates to development (buildings and works) and subdivision will expire if one of the following circumstances applies: 
(a)	The development is not started within two years of the issued date of this permit. 
(b)	The development is not completed within four years of the issued date of this permit. 
(c)	The plan of subdivision is not certified within two years of the issued date of this permit. 
(d)	A statement of compliance is not issued within five years of the date of certification.  
In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.
– End of conditions –