Page Text: KJR Investments Pty Ltd v Bass Coast SC [2022] VCAT 191
13 April 2022
In the recent VCAT decision of KJR Investments Pty Ltd v Bass Coast SC [2022] VCAT 191, Bass Coast Shire Council’s decision to refuse a permit for the use and development of a camping and caravan park was affirmed.
Represented by HWL Ebsworth Lawyers, Council was successful each of its submissions that the proposal was unacceptable in its strategic context and that it would result in unacceptable impacts on the landscape, character, flora, and fauna of the surrounding area.
Background
This case concerned a proposal for use and development of a camping and caravan park in Newhaven on Phillip Island. The site was situated on farming zoned land with vegetated coastal dunes and bordered the Forrest Caves beach, the Forrest Caves reserve, and open rural land, with the Scenic Estate Conservation Reserve opposite. The site was located within an area declared as a Distinctive Areas and Landscape (Bass Coast DAL).
Decision
Despite the virtues of the proposal from a tourism perspective, the Tribunal found that the proposal was unacceptable given the strong emphasis in the planning scheme on the protection and enhancement of the site’s contribution to landscape and environmental values.
Strategic context
Even acknowledging that there was broad policy support for tourism, the Tribunal found that the proposal did not have a sufficient connection in its provision of tourism accommodation with the area’s agricultural land use.
Landscape character
While the proposal proposed mounding, landscaping and limiting permanent buildings to minimise its visual presence, the policy framework focusses on protecting and maintaining landscapes rather than hiding development. The Tribunal found that the proposal would unacceptably impact the visual quality of the landscape as it would be seen from the adjacent nature reserve and would foreground views towards Westernport.
Impacts on flora and fauna
Impacts on the flora and fauna of the area included the “poor design response” for native vegetation, and the unacceptable impacts on Short-Tailed due to the 24 hour nature of the activity impacts at the camp and caravan park.
Stormwater drainage and water quality management
The Tribunal found that despite the proposed rainwater tank system, parts of the site would remain subject to inundation, and that a small area of coastal saltmarsh (a listed vulnerable ecological community under the EPBC Act) in nearby conservation reserve would be impacted. Further, the location and the sizing and spacing for sediment drying in the treatment wetland was found to be a poor design response given its purpose of treating stormwater before it enters a sensitive conservation area.
How can we help you?
HWL Ebsworth Lawyers regularly advises and assists Council’s, permit applicants and other authorities on permit applications and VCAT applications. Please do not hesitate to contact us to discuss the implications of this decision on your potential matter.
This article was written by David Vorchheimer, Partner and Mary Pirozek, Law Graduate.
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