The decision to grant a retrospective building permit for a site on White Swan Road, a possible VicRoads water retention basin located beneath the Melbourne-bound M8 Western Freeway near the Swinglers Road overpass, has since been overturned.

The VCAT findings were critical of the City of Ballarat's approach to planning at the site, especially regarding the likelihood of flooding, and the failure of council officers to adequately assess the land's capability to contain water and support a septic wastewater system.

VCAT also found regulations regarding the clearing of native vegetation may not have been followed, that fill used on the site was not adequately tested, and the retrospectively-approved filling of the site may have exacerbated flooding.

While drainage experts for both parties in the matter modelled potentially different outcomes, VCAT said Mr Taylor's photographs of recent flooding gave a more realistic indication of problems at the site.

"We find that even seemingly small changes to the site's topographical conditions - not just from the contentious earthworks but from other development features of the kind associated with the use and development of the land for a dwelling - can individually or cumulatively bring about a material change to the behaviour of stormwater flows and flood characteristics on the site and surrounding land," the VCAT members said.

"We find that a more fully resolved proposal, whose development features are better documented and factored into flood modelling is necessary before determining whether to grant a permit for this proposal."

For Bob Taylor, the permit's overturning is small satisfaction. The death of Andrew, aged just 60, occurred shortly after the properties they jointly own were flooded in January 2022.

The flooding occurred just one day after the City of Ballarat issued a building permit for the site.

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Mr Taylor says his brother, a quiet man who never married and enjoyed nothing more than farming his properties, was so afflicted by the stress of the entire matter he suffered a cerebral haemorrhage and died.

Mr Roberts wants to know why the application was so poorly researched, and why the City of Ballarat failed to take action against the site's owners after he and his brother reported unauthorised backfilling taking place day and night on the site for months.

He wants to see the council's documentation of their complaints, and understand the relationship between planning staff and external planning advocates - why the City of Ballarat persistently backed the permit application at VCAT.

He questions why and how the land was sold originally, given its supposed role in the maintenance of water control from the freeway.

"My brother managed to go down (to council) every Friday for about eight weeks, telling them this bloke's filling the retention basin," Mr Taylor says.

"We were left in the dark; there was no transparency whatsoever about what was going on. My brother had gone down there each week to tell them, 'He's dumping soil, you're gonna have problems,' and it was only when there was a near accident, with one of the excavators I believe, that they actually came here from the council and shut it down.

"There's no enforcement whatsoever. We're talking 800 to 1000 (cubic) metres of soil. The trucks were running around the clock. There was no enforcement; instead, they they allowed him to apply (retrospectively) for a permit."

Both VCAT and Mr Taylor criticise the City of Ballarat's handling of this part of the application, saying the source of the fill has never been verified and its suitability for the site was not tested.

'Whilst the unauthorised filling of the land was reported by the Applicants to the Council on several occasions in 2019 and onwards, the filling of the review site has continued with the knowledge of the Council without any enforcement action being taken to stop the works,' the VCAT finding said.

Matt Seehusen bought the land from VicRoads in 2019, and says there was no indication on the section 32 documentation provided to him it was any kind of water retention feature or drainage.

He says he was unaware the site was prone to flooding when he purchased it.

"There is nothing documented about it," Mr Seehusen told The Courier.

"VicRoads, who sold me the property, they said at one point in time it was considered (for) a water basin, but they didn't actually go ahead with it. It's never been shaped to take water. That's just how the land finished up in the end. So it's (brought) up in the tribunal that (it's for) water retention. But there's nothing documented about it."

Mr Seehusen says the flooding events presented at the VCAT hearing resulted after extraordinary rain events, which he says would have most likely inundated the Taylor's properties whether he had developed the site or not. He says the photos presented by the Taylor's at VCAT represented a singularly heavy downpour.

"We've just gone through a massive rain event at the moment," Mr Seehusen says.

"I went there (to White Horse Road) every day taking pictures, and no more than a stream of water has been going through there. So the photos (presented at VCAT), I'm not overly confident in them. That was a big rain event, and they're basing that off what the aerodrome waterfall was that day, which I think was maybe 75mm, and Ballarat Central 56mm or something like that. It wasn't a great deal of rain. But that was at the aerodrome. In that rain band that went straight through from Creswick, the information was hundreds of millimeters of rain (fell) in a matter of hours."

As to the filling of the site with soil, Mr Seehusen acknowledges he was in error.

"That was a naive mistake on my behalf," he says.

"I thought if you own property, you're allowed to bring some fill in; it was never marked in any sort of way that it's a water retention (basin). I've done that, I've put the fill in there, because I had the opportunity to be able to get it. And council said, 'You're not allowed to do that.'

I said 'I'm sorry', and they said, 'Well the next lot, of course, you have to get a planning permit for it.' And I said, 'Okay, alright, we'll go down that path." And I've had numerous meetings with council, and they worked with me. (It was) fantastic, to be honest, to be able to try and get to that point, to get an actual planning permit."

Councillor Peter Eddy inspected the site at Mr Taylor's request several times. He says there are no winners in the outcome, and the matter highlights the need for council to consider more widely its approaches to planning as climate changes.

In response to questions regarding the matter, and especially the retrospective permit, the City of Ballarat's director of growth and development Natalie Robertson issued the following statement.

"The State Government's Planning and Environment Act requires Council to accept and assess all valid permit applications, regardless of whether they are retrospective.

"However, guidance on appropriate planning approvals should always be sought in advance of any works beginning. The City of Ballarat acknowledges and accepts the decision reached by VCAT."

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