VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P44/2019, P340/2018
Permit Application no. 5.2018.69.1	
CATCHWORDS	
Section 77 Planning and Environment Act 1987 – Farming Zone – Significant Landscape Overlay – Bushfire Management Overlay - use of a railway carriage as a store
Section 114 Planning and Environment Act 1987 – use of a railway carriage as a store without a planning permit	
P44/2019		
applicant	Trevor Mark Botterill	
RESPONsible Authority	Alpine Shire Council	
referral Authority	Country Fire Authority
Goulburn-Murray Water 	
P340/2018		
applicant/Responsible authority	Alpine Shire Council	
respondent	Trevor Mark Botterill	
SUBJECT LAND	921 Morses Creek Road
WANDILIGONG VIC 3744	
WHERE HELD	Melbourne	
BEFORE	Jeanette G Rickards, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	15 April 2019	
DATE OF ORDER	18 June 2019	
CITATION	Botterill v Alpine SC [2019] VCAT 903	

Order
P44/2019    
Permit granted
1	In application P44/2019 the decision of the responsible authority is set aside.
2	In planning permit application 5.2018.69.1 a permit is granted and directed to be issued for the land at 921 Morses Creek Road, Wandiligong in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	To use and develop the land for a store (railway carriage).
P340/2018
3	The application for an enforcement order is refused. 

Jeanette G Rickards, Senior Member			

Appearances
For applicant/responsible authority	Mr N Vlahandreas, Town Planner, Mountain Planning	
For respondent/applicant 	Mr T Botterill, in person	

Information
Description of proposal	The proposal seeks retrospective approval for the use and development of the subject land as a store. A rail carriage already located on the subject land is proposed to be used to store equipment and supplies associated with the maintenance of the land. 	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 
Application under section 114 of the Planning and Environment Act 1987 – seeking an enforcement order for the removal of the rail carriage 	
Planning scheme	Alpine 	
Zone and overlays	Farming Zone (clause 35.07)
Bushfire Management Overlay (clause 44.06)
Significant Landscape Overlay Schedule 3 (clause 42.03)	
Permit requirements	Clause 35.07 – use of land as a store
Clause 35.07- 4 – construct a building construct or carry out works associated with the use and within 20m of a road, 5m of a boundary and 100m of a waterway
Clause 42.03-2 – construct a building construct or carry out works
Clause 44.06-2 – construct a building construct or carry out works 	
Relevant scheme policies and provisions	Clauses 12.05-2S, 15.01-2S, 15.01-6S, 21.04-3, 21.05-3, 21.08, 22.02-3, 22.03-2 and 65 	
Land description	The subject land is located on the south eastern side of Morses Creek Road. The subject land is irregular in shape and has a total area of approximately 2782m². The subject land has a frontage to Morses Creek Road of approximately 128m to the south east and 121m to the east.
The subject land consists of native vegetation along Morses Creek and exotic trees planted on approximately three quarters of the land to the south west. 	

Reasons
1	Mr Botterill is the owner of 921 Morses Creek Road, Wandiligong. Mr Botterill has owned the subject land for approximately 11 years. It is understood Mr Botterill may have resided on the subject land for periods of time in a caravan, as well as using a shipping container and another structure referred to as a ‘cubby’. The caravan and shipping container have been removed from the land and do not form any part of the Tribunal’s consideration.  Over the 11 year period Mr Botterill has planted a number of exotic trees on the subject land. 
2	Two applications have been brought before the Tribunal. Application P340/2018 is an application by Alpine Shire Council (the council) seeking an enforcement order requiring the removal of a rail carriage and the cubby from the subject land. Application P44/2019 is an application by Mr Botterill seeking review of the council’s decision to refuse to grant a permit allowing the use of the rail carriage as a store.
3	The rail carriage which is relatively old and described by train enthusiasts as a ‘red rattler’ is 18.2m in length, 2.9m wide and 3.2m high. It is clad in steel; one side is painted red and the other side green. A structure described as a shed/cubby is 3m in length, 2.3m wide and 2m high. It is clad in cream colorbond. Both structures were proposed to be used for the storage of equipment for the maintenance of the subject land. It is now understood the shed/cubby is to be removed. Mr Botterill placed the rail carriage on the subject land on 29 January 2018. 
4	Both the rail carriage and shed/cubby are located within 20m of Morses  Creek Road, 5m from a boundary and 100m from Morses Creek, a waterway. Due to their locations a planning permit is required under the Farming Zone (FZ) at clause 35.07- 4 for their use, as well as development. As the land is also located within a Bushfire Management Overlay (BMO) and Significant Landscape Overlay Schedule 3 (Wandiligong Valley Significant Landscape Area) (SLO3) permits are required for building and works.
5	The enforcement application was lodged with the Tribunal on 19 February 2018 following complaints. An application for a planning permit was lodged with the council on 19 April 2018. The permit application was advertised, and several objections were submitted.
6	The permit application was referred to the Country Fire Authority and Goulburn-Murray Water under section 55 of the Planning and Environment Act 1987 (the PE Act). Both have status as referral authorities and both have consented to the permit application subject to conditions. 
7	The permit application was also referred to the North East Catchment Management Authority under section 52 of the PE Act. The Catchment Management Authority is not a referral authority but indicated to the council that it did not object, subject to conditions relating to flood levels of Morses Creek.
8	The application was referred to the Department of Environment Land Water and Planning (DELWP) as the land abuts crown land zoned Public Conservation and Resource (PCRZ). DWELP raised no objections to the granting of a planning permit. 
9	A joint objection was lodged with the council on behalf of several nearby landowners. Their objections related to the possible use of the rail carriage as a dwelling, the impact of the rail carriage on the amenity and aesthetics of the area, potential flooding impacts and the use of the rail carriage on the subject land not meeting the purposes and intent of the FZ. 
10	The council’s grounds of refusal relate generally to inconsistency with the FZ and SLO3, as well as the negative impact on the amenity of the area. These matters will be discussed below.  
Is the proposal inconsistent with the zone and overlay provisions?
11	The subject land is located in the FZ.  The land is an irregular shape and abuts Morses Creek Road to the north and west and land zoned PCR to the south and east. It sits on a bend in the road and on the opposite side of the road are properties used for domestic and agricultural uses. It is separated from the remaining land in the FZ by the road and as such, given its size, is relatively constrained in its ability to be used for agricultural purposes. This has been eroded further with the planting by Mr Botterill of a number of trees across the subject land. 
12	As stated above, Mr Botterill has over the period of time he has owned the land, planted numerous exotic trees which cover at least three quarters of the subject land. Opposite the subject land is an extensive stand of Poplar Trees which are heritage listed. Clause 21.03-4 identifies Wandiligong Valley as a National Trust recorded/classified landscape. 
13	The SLO3 covers the Wandiligong Valley which is described as:
The Wandiligong Valley is characterised by a myriad of patterns, forms and colours where the built environment is intrinsic to the landscape. This is emphasised by the cultural and heritage background of the valley.    
14	The decision guidelines under the SLO3 requires consideration as to:
•	The impact of the proposed buildings and works on the landscape due to siting.
•	The extent to which the site of the buildings and works will be landscaped and the type of vegetation used.
•	The document Landscape Planning & Conservation in North-East Victoria, National Trust of Australia (Victoria), 1977.
15	The rail carriage can be seen from Morses Creek Road, albeit is partially screened by trees planted by Mr Botterill. The rail carriage currently sits approximately 5m from the northern boundary and 29m from Morses Creek. Mr Botterill’s permit application was amended to include the relocation of the rail carriage so that instead of the end of the rail carriage facing the road it would be swung around to run parallel to Morses Creek Road.  I do not consider this relocation would make the rail carriage less prominent when viewed from Morses Creek Road. It is understood this was at a request from the North East Catchment Management Authority in relation to flooding of the land. It was however, evident from discussions with Mr Botterill that the relocation of the rail carriage, as proposed, would not be a simple exercise and may prove to be almost impossible due to the location of trees in the general vicinity.
16	Clause 21.04-3 indicates that ‘key landscapes across the Shire can be regarded as being of the highest level of public concern for visual management. Such areas are highly sensitive to visual intrusion’ and as such, consideration is required to be given to: 
•	Ensure that use and development in rural areas considers, protects and does not dominate the landscape setting, integrity, character and significance.
•	Protect and maintain the rural character of the municipality by minimising the visual intrusion of new buildings on the natural landscape.
•	Maintain locally significant views and vistas, particularity the open farmed landscape and ridgelines that have a view line to or from national and state parks or other crown land.
•	Reduce the impact of use and development on land adjacent to national and state parks or other crown land.
•	Recognise and protect the landscape and tourism values of the agricultural sector.
•	Recognise the economic value of agricultural landscapes along key touring routes.
•	Minimise the visual impact of infrastructure and signage on the landscape and viewpoints.
•	Protect and enhance the visual quality of road corridors, particularly between towns.
17	There are numerous buildings within the Wandiligong Valley. As well as dwellings, the buildings are generally large and associated with agricultural activities on the surrounding land. There are also a number of shipping containers that are visible.  Although the rail carriage has an overall length of 18.2m, it is not very high at 3.2m. At this height it does not sit above the majority of the trees planted on the subject land. In my view, the rail carriage is a modest built form.  As such, I do not consider it detracts from the typical built form within the Wandiligong Valley and blends-in quite well with the surrounding trees. 
18	Clause 21.04-4 indicates ‘flooding within parts of the Alpine Shire is a severe constraint on development with the extent of flooding in the Ovens River and tributaries being well documented’.
19	The permit application was referred to the North East Catchment Management Authority. Clause 21.04 seeks ‘to prevent inappropriate development in areas subject to flooding’ and ‘ensure that areas subject to flooding are properly identified and considered to limit the potential for unsuitable development’. No overlay applies to the land in relation to flooding or inundation.  The proposal is for a store and not a dwelling. 
20	The Authority, whilst not a referral authority, did not object to the retention of the rail carriage on the subject land but did consider the rail carriage should be set on stumps, which it is, and relocated to minimise the impact of flooding across the subject land from Morses Creek.  In my view, the relocation of the rail carriage would have more of a detrimental impact on the landscape views of the area than the rail carriage remaining in its current location. As the proposal is to use the rail carriage as a store, its relocation is not necessary provided it is set up on stumps to allow for water to flow underneath the carriage. Photos were provided showing the impact of flooding in the area in 1993 particularly along Morses Creek Road.  
21	The subject land is also covered by the BMO.  ‘Bushfire hazard is a significant issue in many parts of the Alpine Shire with large sections of the municipality affected by the Bushfire Management Overlay’. The protection of human life is prioritised over all other policy considerations.
22	The Country Fire Authority (CFA) responded to the application and provided no objection on the basis that a Bushfire Management Plan is provided. One was provided with the permit application. Part of the condition required by the CFA appears to relate to the development of a dwelling and not a building used for a store. As a result of this the CFA, who did not attend the hearing, were requested to provide further comments. 
23	The CFA agrees its conditional consent should refer to ‘store’ rather than ‘dwelling’ in relation to the defendable space condition. The CFA submits bushfire mitigation measures are required even if the railway carriage is to be used as a store.  I agree with the CFA that if a permit is to issue the conditions relating to the provision of a 10,000 litre water supply, as well as appropriate fire truck access is also to be provided.
24	The CFA noted that the suggested condition regarding the provision of an Emergency Management Plan was included in response to an offer by the applicant. As the railway carriage is to be used as a ‘store’ and not a ‘dwelling’ the requirements contained in the emergency management arrangements should be expressed in terms of advice and be highlighted in a note on the permit rather than as a condition. I would agree this is more appropriate. 
25	Generally, the conditions can be addressed, and I take no issue with the proposal for the rail carriage to be used as a store under the BMO. I am satisfied appropriate access and water supply can be provided.
26	Whilst the purposes of the FZ are ‘to provide for the use of land for agriculture’ and ‘to encourage the retention of productive agricultural land’ the subject land is somewhat small, irregular in shape and separated from other farming land. Retention of the rail carriage on the subject land as a store will not in my view, prejudice the agricultural or productivity capacity of the land. Given its size and separated location from other farmland its productive capacity is somewhat limited. Mr Botterill, by planting an extensive number of trees has in my view, contributed to the landscape qualities of the area. To use the rail carriage for a store to be able to store his equipment to manage the extensive planting on the land is reasonable. 
27	The council highlighted that the rail carriage was at present being used as a store, for the storage of household furniture. Provided the rail carriage is used for the storing of equipment to assist in the maintenance of the subject land, I take no issue in other things being stored. 
Will the proposal have an unreasonable impact on the amenity of the area? 
28	The rail carriage is partially visible when heading north east along Morses Creek Road towards the township of Wandiligong, approximately 3km away. The rail carriage is a little more visible when travelling in the opposite direction.
29	It was suggested that the location of the rail carriage on the subject land detracted from the avenue of Poplar Trees directly opposite the subject land. Given the location of the Poplar Trees on the opposite side of the road, I do not consider that the location of the rail carriage detracts in any way from views of the Poplar Trees. One is not looking at the rail carriage at the same time as looking at the Poplar Trees.  
30	The rail carriage is somewhat nestled within the planted vegetation and additional planting could assist in further screening the rail carriage. The council described the planting as providing an ‘arboretum like’ setting which in my view contributes to the ‘myriad of patterns, forms and colours’ which describes the Wandiligong Valley.
31	The rail carriage cannot be used as a dwelling. 
What conditions are appropriate?
32	Amended plans are required to ensure that the rail carriage is shown as remaining in its current location and not as proposed turned parallel to Morses Creek Road. Condition 9 will be deleted. 
33	I agree that there should be a specific condition that the rail carriage cannot be used for human habitation including any form of temporary accommodation. 
34	I do not consider it necessary to have a condition relating to external materials and finishes as the rail carriage is currently in place and no further building or works are contemplated. I note that one side of the rail carriage is currently painted green and the other side which is more visible from Morses Creek Road remains in its original red colour. Mr Botterill could consider painting the side that is currently red to green, but I do not consider this warrants a condition. 
35	I have also indicated that some additional planting could assist further in screening the rail carriage from Morses Creek Road. As Mr Botterill has already undertaken extensive planting, I believe further planting is a matter for him and although I would recommend additional planting, I will not impose a condition requiring any additional planting. 
36	Proposed conditions 6 and 7 do not relate to this type of permit and will be deleted. 
37	As stated above the rail carriage is not to be used for accommodation.  Therefore, part of the conditions required by the CFA will be amended to delete such references.   
Should the rail carriage be required to be removed?
38	The Tribunal was advised the rail carriage was inspected on 11 April 2019 and whilst the rail carriage may have previously been used by Mr Botterill to stay on the subject land, there was no evidence that it was being used for accommodation.  Photographs provided showed an extensive amount of furniture and goods stored in the rail carriage.  
39	Given the views expressed above, I have no issue with the rail carriage remaining on the subject land and to be used as a store. As such there is no requirement for an order for the removal of the rail carriage.  

Jeanette G Rickards, Senior Member			

Appendix A – Permit Conditions

Permit Application No:	5.2018.69.1	
Land:	921 Morses Creek Road, Wandiligong 	

What the permit allows	
In accordance with the endorsed plans:
•	Use and development of a store (railway carriage) 

Conditions:
General 
1	The layout of the site and the size of the proposed buildings and works must be generally in accordance with the endorsed plans which form part of this permit. The endorsed plans must not be altered or modified (whether or not to comply with any statute statutory rule or local law or for any other reason) without the consent of the responsible authority. 
2	(The store must not be used for human habitation, including temporary accommodation.  The permit only allows the storage of goods, machinery or vehicles associated with the principal use of the land and no more waste water producing plumbed fixtures are to be installed.
3	The store must not be used for the sale of any goods or for the servicing of goods or the manufacturing of goods for commercial gain.
4	The external materials of the building(s) including the roof must be constructed of materials of muted colours to enhance the aesthetic amenity of the area. No materials having a highly reflective surface shall be used. For the purpose of this clause “highly reflective” shall include unpainted aluminium, zinc or similar materials.
North East Catchment Management 
5	The Railway Carriage shall be set on stumps or appropriate footings to provide a minimum finished floor level of RL 394.5 m AHD.
6	The railway carriage shall be anchored to suitable footings to prevent dislodgement by floodwaters and causing damage to assets on the subject property or adjacent properties.
7	No fill is to be imported to or placed within the property in completion of the works.
Country Fire Authority  
Bushfire Management Plan required
8	Before the development starts, an amended bushfire management plan which is generally in accordance with the plan Bushfire Hazard Site Assessment submitted with the application (prepared by Oxley & Co, Reference no. S8037 dated 0810812018) must be submitted to and endorsed by the Responsible Authority. The plan must show the following bushfire mitigation measures, unless otherwise agreed in writing by the CFA and the Responsible Authority:
Defendable space
(a)	Show an area of defendable space around the proposed dwelling to the property boundary where vegetation (and other flammable materials) will be modified and managed in accordance with the following requirements:
•	Grass must be short cropped and maintained during the declared fire danger period.
•	All leaves and vegetation debris must be removed at regular intervals during the declared fire danger period.
•	Within 10 metres of a building, flammable objects must not be located close to the vulnerable parts of the building.
•	Plants greater than 10 centimetres in height must not be placed within 3m of a window or glass feature of the building.
•	Shrubs must not be located under the canopy of trees.
•	Individual and clumps of shrubs must not exceed 5 sq. metres in area and must be separated by at least 5 metres.
•	Trees must not overhang or touch any elements of the building.
•	The canopy of trees must be separated by at least 5 metres.
•	There must be a clearance of at least 2 metres between the lowest tree branches and ground level.
Water supply
(b)	Show 10,000 litres of effective water supply for firefighting purposes which meets the following requirements:
•	Is stored in an above ground water tank constructed of concrete or metal.
•	Have all fixed above-ground water pipes and fittings required for firefighting purposes must be made of corrosive resistant metal.
•	Include a separate outlet for occupant use.
•	Incorporate a ball or gate valve (British Standard Pipe (BSP) 65mm) and coupling (64 mm CFA 3 thread per inch male fitting).
•	Be located within 60 metres of the outer edge of the approved building.
•	The outlet/s of the water tank must be within 4m of the accessway and be unobstructed.
•	Be readily identifiable from the building or appropriate identification signage to the satisfaction of CFA must be provided.
•	Any pipework and fittings must be a minimum of 65 mm (excluding the CFA coupling).
Access
(c)	Show the access for firefighting purposes which meets the following requirements:
•	Curves must have a minimum inner radius of 10m.
•	The average grade must be no more than 1 in 7 (14.4 per cent) (8.1 degrees) with a maximum of no more than 1 in 5 (20 per cent) (11.3 degrees) for no more than 50m.
•	Have a minimum trafficable width of 3.5m of all- weather construction.
•	Be clear of encroachments for at least 0.5m on each side and 4m above the accessway.
•	Dips must have no more than a 1 in 8 (12.5 per cent) (7.1 degrees) entry and exit angle.
Goulburn-Murray Water 
9	No buildings are to be constructed within 29 metres of any waterways or on any drainage lines.
10	The buildings and structures must not contain bedrooms (or rooms that could be used as bedrooms) or any facilities with the potential to produce wastewater, including toilets, kitchens or other food preparation facilities.
Expiry 
11	This permit will expire if one of the following circumstances applies:
(a)	the development and use is not started within two years of the date of this permit.
(b)	the development is not completed within four years of the date of this permit.
the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months afterwards.
- End of conditions -