Time and tide defeat Cowes house permit

TIME and tide, they say, wait for no man. And turns out they’re also enough to wash up a challenge at the Victorian Civil and Administrative Tribunal (VCAT).

In a decision handed down by VCAT last week, the tribunal upheld a resolve for Bass Coast Shire Council not to issue a fourth extension of time for a house to be built, on a 26-hectare site, at the end of Settlement Road, Silverleaves, in part due to a change in the flood hazard rating on the property and access road.

The applicant, listed as Carley Nicholls, had already between August 27, 2014 and August 27, 2022 started building the house, but no more.

In the past month, the Bass Coast Shire’s score at VCAT is 2:1; winning the ‘Nicholls v BCSC’ case on May 24 and stopping a fourth floor going up on a 40-unit apartment block in Inverloch on May 11, but suffering a crushing blow with the rejection of the $50 million National Vietnam Veterans Museum project at Newhaven earlier in the month.

So, it’s a case of win-some lose-some for the local shire.

But they didn’t get off completely Scott-free in VCAT’s latest decision, with the tribunal saying the council used incorrect information about zoning and overlays when granting the second and third extensions of time, and may even have got it wrong when agreeing to the first extension.

These were serious oversights by the council potentially leaving future occupants of the 
proposed house exposed to flooding, and users of the access road also at risk.

Not only were the councillors unaware, when the shire issued the first extension of time, that the site for the house was subject to flooding (LSIO), it was also incorrectly advised, as a consequence, that “if a fresh application were lodged with Council, there is a fair chance that a permit would be granted”.

When it came to the second and third extensions of time, council officer reports said incorrectly that the land was zoned ‘Farming’ when it had in fact been changed to ‘Rural Conservation Zone’ (RCZ) and no planning overlays applied when it was covered by two, an LSIO detailing flood and sea-level rise risk, and an ESO1 (Environmental Significance Overlay) likely to trigger significant coastal environment protection measures.

Council took no account of these issues at the time.

Since the last extension of time was approved, on November 16, 2020, allowing the development to commence by August 27, 2022, Amendment VC171 has been gazetted (on September 6, 2021) strengthening coastal hazard planning, requiring land use and development to plan for sea level rise of not less than 0.8 metres by 2100.

The amendment also allows for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology to be considered when assessing risks and coastal impacts associated with climate change.

It was principally as a result of Amendment VC171 that Council ultimately declined to extend the permit for a fourth time.

And they say they are unlikely to approve a new application in the future.

According to realestate.com, the property was purchased in February 2007 for $580,000 and could be worth as much as $1.4 million but what it might be worth now without a permit to build a house is anyone’s guess.

There’s also the issue, as yet unresolved, referred to in the VCAT report, of the proposal to gift a large portion of the environmentally significant site, connected to the Rhyll Inlet system, a Ramsar listed wetland, to Phillip Island Nature Parks.

As it turns out, the approved dwelling would have had a finished floor level of 3.6 metres and sitting on a spit of high land above 3.0m AHD, it would have stood above the inundation level of 2.8m but “parts of the driveway and parts of Settlement Road will be affected by flood waters”, according to VCAT.

VCAT heard expert opinion that parts of Settlement Road could be impacted by flood waters “at the upper threshold of safety for small cars”.

And “under the 2100 climate change conditions …would exceed the classification of being safe for children and 4WD for a short period of time of 1-2 hours (without any mitigation measures)”.

“Melbourne Water does not support the proposed extension of the permit particularly due to the level of flooding in Settlement Road that is predicted as a result of sea level rise,” according to the VCAT report handed down last week.

And the Council told VCAT that it was unlikely to support a fresh application for a range of reasons, including likely opposition by Melbourne Water and changes in planning conditions.