VCAT upholds council’s refusal

Baw Baw Shire's refusal of a house on a farm zoned property in Darnum has been upheld by the Victorian Civil and Administrative Tribunal because of its flood risk.

VCAT member Shiran Wickramasinghe said development of the property had the "potential to create a flood risk to life, health and safety by stranding residents on site and creating a circumstance where residents may try to navigate flood water."

Applicants Edmund and Francesca Kennedy appealed council's refusal of their planning application that sought to develop a house and agricultural shed on a 3.9 hectare property on the corner of Rhodes and Silbys Rds.

The proposal included a house, agricultural shed to house farm machinery, 60 chickens, paddock fencing to preserve wetland areas and allow rotational grazing of 10 sheep.

A farm management plan supporting the application indicated the net annual return would be $24,200 by year five, with the labour being about 15 hours a week.

The house was sought to enable the applicants to manage the chickens, sheep and grow a market garden.

Key issues for council's refusal related to floodplain management and whether the house was reasonably required to support the farming activity.

As a referral authority, the West Gippsland Catchment Management Authority opposed the development for a number of reasons, including the proposal was inconsistent with floodplain management.

VCAT heard there were two existing access points to the property and the applicants proposed to upgrade the Rhodes Rd access as the main entrance.

WGCMA acknowledged there was a sufficient flood-free building envelope on the site, but there was concern over the potential flood depth across the access point and evacuation from the property to Rhodes Rd.

The WGCMA report said the house would rely on low level access and safe access would not be possible during a one in 100 year flood event.

"This would pose a risk to life of both any future occupants of the proposed dwelling and emergency personnel, as safe access could not be provided," the WGCMA assessment said.

The WGCMA suggested an alternative driveway route to Silbys Rd.

Mr Wickramasinghe said the applicant submitted council and the WGCMA had taken an 'in principle' position based on an isolated view of the flood risk and ignored the broader context of the site.

The applicants said council and the WGCMA's concerns were overstated and "while there is a risk to human life, the proposal does present an acceptable outcome when a balanced assessment of the planning controls and site context is undertaken.

"While floods can occur rapidly and their effects present potential catastrophic consequences, this site could be easily and quickly evacuated.

The risk to human life is somewhat mitigated by advanced warning of the risk of flooding and any potential flood emergency, compared to a situation where there is little or no warning of an impending threat to human life," the applicants submitted.

Mr Wickramasinghe said he was not persuaded by the applicants' submission.

"There are relevant policies and decision guidelines that seek to protect life and property from flood hazard and seek site development to minimise risk to life from natural hazards such as flood.

“The WGCMA flood modelling shows the flood depth on the driveways to Rhodes Rd and Silbys Rd is likely to reach 2.7 metres... (which) will exceed the safe depth of no greater than 0.3 metres," he said.

Water Technology senior principal engineer Warwick Bishop said the current design did not comply with WGCMA's safety requirements.

Mr Wickramasinghe said Mr Bishop indicated the risk could be mitigated through implementation of a flood risk management plan for the site.

Mr Bishop told VCAT the risk to residents could be managed because the house was above the flood level and the residents would stay safely on site, even during prolonged isolation. However, Mr Wickramasinghe said exposing occupants to flood risk where the only means of access to the site was subject to significant flood hazard was unacceptable.

"The use and development of the site will result in an unacceptable loss of productive agricultural land as the dwelling will occupy land that is not affected by flooding on a site where less than half its area is usable during the wet season," he said.