VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1117/2024
Permit Application no.PLA0177/22 	
CATCHWORDS	
Section 80(1) of the Planning and Environment Act 1987 (Vic); Baw Baw Planning Scheme; Subdivision within Warragul Precinct Structure Plan; planning permit conditions relating to retaining walls and permit expiry challenged	

Applicant	Gippsland 7 Pty Ltd	

Responsible Authority	Baw Baw Shire Council	

SUBJECT LAND	147 Dollarburn Road
WARRAGUL VIC 3820	

HEARING TYPE	Hearing	

DATE OF HEARING	29 May 2025	

DATE OF ORDER	5 June 2025	

CITATION	Gippsland 7 Pty Ltd v Baw Baw SC [2025] VCAT 499	
Order
Application amended
1	Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans the following plans:
(a)	An amended Estate Development Plan prepared by Reeds Consulting, version F3, reference 23954P, dated 8 April 2025;
(b)	A Slope Analysis Plan prepared by Reeds Consulting, version B, reference 23954P, dated 15 April 2025; and
(c)	Bulk Earthwork Plans prepared by Reeds Consulting Q001 – Q002, Q011 – Q012, Q101 – Q102, Q111, Q121, Q131 – 132, Q141, Q 151, Q161, Q171, Q200 – Q207, Q301 – Q302 all revision B, dated 16 April 2025.
Conditions changed
2	In application P1117/2024 the decision of the responsible authority is varied.  
3	The Tribunal directs that planning permit PLA0177/22 must contain the conditions set out in the planning permit issued by the responsible authority on 8 August 2024, as amended on 18 December 2024, 7 February 2025 and 14 February 2025 with the following modifications:
(a)	Amend condition 1 referring to amended plans to replace the two bullet points in the head clause with the following two bullet points:
•	Estate Development Plan prepared by Reeds Consulting, version F3, reference 23954P, dated 8 April 2025; and
•	Bulk Earthwork Plans prepared by Reeds Consulting, Q001 – Q002, Q011 – Q012, Q101 – Q102, Q111, Q121, Q131 – 132, Q141, Q 151, Q161, Q171, Q200 – Q207, Q301 – Q302 all revision B, dated 16 April 2025.
(b)	Amend condition 89 to read:
89	Unless otherwise agreed in writing by the Responsible Authority:
a)	At the front of lots and in public open space areas, all retaining structures are to be no greater than 1 metre in height per individual retaining wall.
b)	At the side and rear of lots, retaining structures are to be no greater than 2.5 metres in height per individual retaining wall.
c)	Where retaining of more than 2.5 metres is required, retaining walls must be staggered with a minimum of 0.75 distance between each stagger and positioned so that associated drainage infrastructure is retained within each lot.
(c)	Amend condition 124(a) to read:
a)	The Plan of Subdivision for the first stage has not been certified under the Subdivision Act 1988 within 3 years of the issued date of this permit.
4	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Nick Wimbush
Member			

Appearances
For applicant	Andrew Walker of Counsel instructed by Luke Denham, Solicitor, Hall & Wilcox. He called expert evidence from Sam Ravida in civil engineering.	
For responsible authority	Yoga Yogaparan, Development Planner, assisted by Alex Metric, Team Leader Development Engineering.	

Information
Description of proposal	A 112 lot residential subdivision within the Warragul Precinct Structure Plan (‘PSP’) area. An extract of the substituted Estate Development Plan is shown in figure 1.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 (Vic) – to review the conditions contained in the permit.	
Planning scheme	Baw Baw Planning Scheme	
Zone and overlays	Urban Growth Zone – Schedule 1 (‘UGZ1’)
Development Contributions Plan Overlay – Schedule 1 (‘DCPO1’)
Development Contributions Plan Overlay – Schedule 2 (‘DCPO2’)
Environmental Significance Overlay – Schedule 4 (‘ESO4’)	
Land description	A 26.25 hectare rectangular lot currently used for agriculture northwest of Warragul within the Warragul PSP. Parts of the land covered by the Farming Zone and the proposed residential area are steep with some areas exceeding 20% slope. Extensive earthworks and retaining walls are proposed for the proposed residential area. 	

Figure 1: Revised Estate Development Plan

Reasons
Background
1	Baw Baw Shire Council (‘council’) issued planning permit PLA0177/22 on 8 August 2024 for the subdivision of the land, removal of vegetation including native vegetation and for the variations of easements. The permit contained 124 conditions.
2	On 7 October 2024, Gippsland 7 Pty Ltd (‘applicant’) lodged a review of a significant number of permit conditions. 
3	Two compulsory conferences were held at VCAT and by orders dated 18 December 2024 and 7 February 2025 the permit was amended by consent. Following these amendments two conditions remain in dispute, being condition 89 relating to retaining walls and condition 124(a) in relation to expiry.
Procedural issues
Substitution of plans
4	At the commencement of the hearing the applicant sought to substitute plans including a revised Estate Development Plan. It submits the plans were developed to demonstrate the extent of retaining walls required and show that condition 89 is unreasonable; but that the exercise also demonstrated some improvements to the estate design in terms of lot layout, road grades and the extent of retaining walls.
5	The applicant submits the plans have been circulated in accordance with the VCAT Planning Practice Note PNPE9. Council did not object to the substitution of plans and the applicant advised that no referral authorities objected to the amendments.
6	In addition to the general requirements of PNPE9, the practice note includes two elements specific to matters under s 80 of the Planning and Environment Act 1987 (Vic). These are:
•	Whether the amendments to plans relate to the conditions under review (cl 23(f)); and
•	The utility of providing a ‘conditional’ substitution pending the final determination of the proceeding (cl 25).
7	I am satisfied that cl 23(f) is a relevant matter to be considered in any question of substitution in this proceeding. I am also satisfied that the amendments to plans sought are relevant to condition 89. The plans seek to directly respond to the contest around condition 89 and the extent to which retaining walls of particular heights are required.
8	In the hearing I advised the parties that I would allow the request to substitute plans on a conditional basis on the terms countenanced in cl 25 of PNPE9; and the hearing proceeded on this basis with the applicant’s ‘preferred’ plans.
9	As I have now made my final determination on the conditions in favour of the applicant, I have ordered the substitution of plans accordingly.
Amendment of condition 1
10	The applicant seeks to amend condition 1 to reflect the substituted plans referred to above. Council did not object to the amendment sought.
11	In the original s 80(1) application, elements of condition 1 were sought to be reviewed but not the plan references themselves. 
12	The applicant argues that as the substituted plans are now the plans that should be referred to in condition 1, leave should be given to amend condition 1 to the extent necessary to reflect the revised plans.
13	It submits that the amended plans achieve some of the requirements in sub clauses in condition 1. Council shared this view. The applicant did not go so far as to suggest those sub clauses be deleted at this time through this application.
14	On balance, I consider the amendment to condition 1 in the circumstances is a reasonable outcome and the most efficient way to give effect to the amended plans. The change to the condition in my view is a consequent response to the considerations around condition 89, not a new change proposed in its own right.
should the condition relating to retaining walls be revised?
15	Condition 89 currently reads:
All retaining structures are to be no greater than 1 metre in height per individual retaining wall and no greater 3m in total, with a minimum of 0.75m distance stagger between each stagger and positioned so that associated drainage infrastructure is retained within each lot, unless otherwise agreed in writing by the Responsible Authority.
16	The applicant seeks revised wording as follows:
Unless otherwise agreed in writing by the Responsible Authority:
a)	At the front of lots and in public open space areas, all retaining structures are to be no greater than 1 metre in height per individual retaining wall.
b)	At the side and rear of lots, retaining structures are to be no greater than 2.5 metres in height per individual retaining wall.
c)	Where retaining of more than 2.5 metres is required, retaining walls must be staggered with a minimum of 0.75 distance between each stagger and positioned so that associated drainage infrastructure is retained within each lot.
17	Council’s approach is said to derive from the PSP and particularly requirements R12, R13 and guideline G15. The applicant contends that the approach in condition 89 is unreasonable in the context of a housing crisis and is a ‘misconception’ of the requirements and guidelines in the PSP.
18	For completeness, requirement R12 is:
Subdivision applications for land of a slope greater than 10-per-cent must be accompanied by the following information, as appropriate:
•	A plan showing lot boundaries, contours, and slope.
•	An indication of the type, location and approximate depth of any proposed earthworks.
•	An indication of the type, location and approximate height for proposed retaining structures.
•	Design concept plans, prepared by a suitably qualified engineer, addressing the appropriateness of the depth of proposed earthworks and use of retaining structures where they are to exceed 1.0 metres in height. The location and approximate grade of any proposed roads and paths.
•	Indicative building envelopes.
•	Indicative lot access arrangements consistent with Council standards for crossover design.
19	And R13 is:
Any vertical retaining structures in public places (with the exception of those that are part of building walls) must be no more than 1.0 metres in height, unless otherwise agreed by the responsible authority.
20	And G15 is:
Any retaining structures (with the exception of those which are part of building) should be:
•	No more than 1.0 metres in height between a dwelling and a street or public space, or where visible from a street or public space.
•	Set back at least 1.0 metres from any building envelope.
•	Staggered, with a minimum 0.75 metre distance between each stagger to allow for the inclusion of landscaping, where cutting and filling is deeper than 1.0 metres.
•	Positioned so that associated drainage infrastructure and structural foundations are fully located within the same lot.
21	From R12 it is clear that retaining structures may exceed one metre in height; it requires a qualified engineer to assess their appropriateness where they do so. 
22	R13 requires vertical retaining structures in public places to be no more than 1 metre in height. Although the wording suggests ‘in’ public places, a broader review of the context in my view suggests this includes ‘fronting’ public places such streets, footpaths, parks and drainage reserves which would be consistent with this first dot point in G15. In this case the design of the subdivision has achieved the requirement of R13 in the sense that there are no retaining walls more than 1 metre in height fronting public places.
23	G15 is a guideline and thus is discretionary. For the first bullet point in G15 as observed above there are no or very limited exceedances of the 1 metre height for retaining walls in public places. The second limb of the first bullet point is ‘or where visible from a street or public space.’ Higher retaining walls, over 1 metre and up to 2 metres or more, are clearly visible at the subdivision stage. However, post development, the visibility and impact of higher retaining walls is limited by the dwelling itself and the limited side setbacks. This can be seen in many new subdivisions and developments in the PSP area around Warragul.
24	The third bullet point in G15 identifies that retaining structures should be staggered if cut and fill is over 1 metre with a minimum 75 millimetres between retaining structures. This is also discretionary, and Mr Ravida’s evidence is that in practice a greater distance is required between tiers of retaining walls to accommodate the site constraints and soil types in this area. His evidence was also that the additional retaining walls and benched areas add significantly to development costs which are passed on to the purchasers.
25	Mr Ravida outlined the design process and noted that development in an area such as this is a complex and integrated process driven by the topography and slope, need for cut and fill to create relatively level building sites, need to place roads at an acceptable grade and to tie in the finished land surface and linkages to surrounding development sites.
26	Mr Ravida’s evidence shows that there are a limited number of walls over 1 metre in height, with a concentration of walls over 1.5 metres in the southeast area bounded between Road 4, Road 6, the site boundary and the floodway reserve. In this area there are some walls over 2 metres in height and one on the northern boundary of lot 326 which proposes to use a staggered arrangement due to the height. 
27	In the hearing council argued that requiring staggered retaining walls over 1 metre is a superior amenity outcome, particularly on rear boundaries as the staggered approach allows for a bench which can be landscaped. They did not call evidence to support the proposition, and while I can understand in some instances it may create a superior layered landscaping outcome, overall, I am not convinced that this outweighs the reduced area of useable rear open space and increased costs for those affected lots.
28	Requiring benching and staggered retaining walls on side boundaries would have significant implications for side setbacks and development on the lots. If required, it would likely require a significant redesign of the subdivision which is inconsistent with council’s original approval of the permit and associated Estate Development Plan.
29	Overall, I find that making a discretionary height of 1 metre maximum for retaining structures mandatory via condition for all retaining walls is not an acceptable planning outcome in this case. The mandatory height of 1 metre for public spaces as set in requirement R13 is met to an acceptable level in my view.
30	It follows that I consider the wording of condition 89 put forward by the applicant to be a more reasonable approach and I have ordered its inclusion.
should the condition relating to expiry be revised?
31	The applicant seeks to change the term of expiry in condition 124(a) from two years to three years to read:
a)	The Plan of Subdivision for the first stage has not been certified under the Subdivision Act 1988 within 3 years of the issued date of this permit.
32	The permit was issued in August 2024 and a significant amount of time has passed since then. While this could be said to be of the applicant’s making due to the review application, it remains that there is just over 12 months left of the two year period before expiry.
33	In the circumstances and given the significant number of secondary consents in the permit, I consider it reasonable to allow for the longer expiry period in the permit for the first stage and have made the order accordingly.
Conclusion
34	For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

Nick Wimbush
Member