In Tauschke v East Gippsland SC [2009] VCAT 2231 (26 October 2009) the Tribunal considered an Application for a Review of a condition contained in the planning permit issued by the Council to subdivide land into 2 lots in Metung. The application was lodged under section 80 of the Planning and Environment Act 1987. The Tribunal allowed the Application for Review and varied the permit condition accordingly.
The condition the subject of the appeal was included at the direction of East Gippsland Catchment Management Authority (EGCMA) who were acting in its role as a referral authority for that part of the land contained within a Land Subject to Inundation Overlay (LSIO).
Importantly, around the time of lodgement of the Application for Review, Amendment VC52 to the Victorian Planning Provision came into effect. The Amendment introduced provisions to address managing coastal hazard and the coastal impacts of climate change.
The principal issue in dispute in this case is whether the development for a dwelling should be allowed on land below the 1.6m AHD level. The EGCMA position is that it does not want any development on the land that has a level below AHD 1.6m.
The applicant, on the other hand, seeks a modified permit condition that will limit the minimum floor level of any future dwelling on the new lot to RL3.2 AHD. In proposing the modified condition, the applicant acknowledged the potential impact of climate change.
In finding in favour of the applicant, the Tribunal stated that the evidence put forward by the applicant's experts is:
…to be preferred to the EGCMA’S approach because their evidence is based on the most accurate information about site levels and potential flooding of the site and it has followed the thrust of the most recent changes to the planning scheme on climate change.
The Tribunal went on to state that:
I consider the revised wording of Condition 4 tabled by Mr Bisset is an appropriate response to the climate change provisions in Clause 15.08-1. It incorporates the most up to date information about existing flooding conditions and it applies a responsible degree of precaution to anticipated rise in sea level and other events such as storm tides in this particular location in accordance with clause 15.08-1. The plans and elevations tabled depicting a dwelling clearly indicate a design that would elevate a dwelling with a minimum floor level of RL3.2mAHD with a garage (minimum RL2.6mAHD) with direct connection to Metung Road that has a level of RL2.9AHD. This is to be preferred to the earlier nominated figure of RL 1.6m AHD.
The EGCMA advised the Tribunal that had it had all the documentation which was before the Tribunal available to it at the time of its decision it would have objected to the application thereby triggering a refusal of the application. However, the Tribunal advised that it was bound to only consider the appropriateness of the condition and not whether a permit should have been issued in the first instance. The Tribunal stated that there were other measures that the EGCMA can take outside the scope of this review to address it concerns about development in this area.
The Tribunal, in acknowledging that EGCMA was working off limited information when it proposed the original condition in dispute, suggested that:
…it would be prudent for the Responsible Authority and the EGCMA to insist on information commensurate with that provided at the review hearing when dealing in the future with climate change issues on land affected by the LSIO and/or a Floodway Overlay.