1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

C01, TP1, TP2, TP3, TP4, TP5, TP6, TP7, TP8, TP9 & TP10 - all Revision C

1. In application P1136/2022 the decision of the responsible authority is set aside.

1. In planning permit application PA210547 a permit is granted and directed to be issued for the land at 30 Hatherley Grove Altona North VIC 3025 in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Construction of two dwellings on a lot

• Ian Thomas, chemical and environmental risk engineer, I F Thomas & Associates

Construction of two double-storey, four-bedroom, side by side townhouses

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 32.09-6 (construction of two or more dwellings on a lot)

Clauses 02.01, 02.03, 02.04, 13, 13.06, 13.07, 32.09, 37.01, 65 and 72.01

The subject land is located on the southwest corner of Hatherley Grove and Windsor Crescent. It has a frontage of 12.19 metres to Hatherley Grove and a depth of 36.58 metres and an area of 552.83 square metres. It is developed with a single storey detached dwelling.

1. Ms Rouba Abou-Zeid has applied to review a decision by Hobsons Bay City Council (the Council) to refuse to grant permission under the Hobsons Bay Planning Scheme (the planning scheme) to construct two double-storey dwellings on the subject land (the proposal).
2. The Council's grounds on which it refused permission for the proposal (as shown in the amended plan) relate to the community safety risks associated with additional housing in the vicinity of a major hazard facility now usually described as the Mobil Altona Terminal (the MHF).
3. My ultimate finding is that the proposal is an acceptable planning outcome having regard to the provisions of the planning scheme and I will grant permission subject to conditions. My reasons follow.

1. The Council consulted the Victorian WorkCover Authority (WorkSafe) and Mobil Refining Australia Pty Ltd (Mobil) and the Environment Protection Authority (the EPA) before it decided to refuse permission.[2]
2. WorkSafe is the regulator of MHFs under the Occupational Health and Safety Act 2004. Mobil operates the MHF.[3]
3. WorkSafe advised against granting permission and the Council adopted the advice. Mobil told the Council it had 'concerns' but did not 'formally object' to granting permission. Both entities elected not to participate in the proceeding.
4. Having regard to the Council's grounds and WorkSafe's and Mobil's non-participation, I sought written submissions from both entities after the hearing concluded to better understand the reasons for their advice to the Council. I gave Ms Abou-Zeid and the Council an opportunity to respond to those submissions.[4] Both responded. I have considered the submissions and responses in making these orders.
5. The EPA told the Council it did not object to the proposal. The EPA said the subject land was not within the threshold distance specified in the planning scheme[5] or the relevant EPA publication.[6]

1. The MHF is located on the east side of Millers Road on both the north and south side of the intersection with Kororoit Creek Road. The MHF is part of the Mobil Altona Terminal (the Terminal).
2. The MHF comprises three main areas.
3. The first area is on the north-east corner of Millers and Kororoit Creek Road where until recently crude refining operations have been carried out (the refinery area). It is an irregular rectangle in shape about 700 metres wide and 350 metres deep.
4. In August 2021, Mobil stopped refining operations at the refinery area. It is currently being decommissioned and this is a complex and time-consuming exercise. The refinery area is unlikely to form a future part of the Terminal but potential future uses by Mobil or others is not yet determined.
5. Mobil says 'portions of the [refinery area] continue to support ongoing operations of the Terminal (such as use tankage, transporting fuel through pipelines via the [refinery area] and the oil waste system that runs through the [refinery area] of the [Terminal]'.[7]
6. The second is the north tank farm which is located to the east of the refinery area on the east side of the Altona railway line that forms the eastern boundary of the refinery area. It is an irregular rectangle in shape about 400 metres wide and 500 metres deep.[8]
7. The third is the blending area which is located to the south of the refinery area on the east side of Millers Road and south of Kororoit Creek Road. It is an irregular rectangle in shape about 700 metres wide and 500 metres deep. As far as I can ascertain, the blending area is or has been associated with refining operations at the refinery area.
8. I refer to these areas as refinery area, north tank farm and blending area, although the parties and Dr Thomas referred to them by different names.[9]
9. The parts of the MHF that are relevant in this proceeding are only the refinery area and the north tank farm.
10. Mobil states the Terminal also includes the south tank farm. The south tank farm is located on the south side of Kororoit Creek Road in Williamstown about 400 metres to the south-east of the north tank farm. The south tank farm is not relevant in this proceeding.
11. WorkSafe has granted licences to Mobil to operate a MHF at the Terminal. One licence applies to the MHF.[10]
12. A MHF is defined under the Occupational Health and Safety Regulations 2017. It is unnecessary to refer to this definition in any detail, other than to state that:

(a) A 'facility' (in relation to a MHF) includes 'any building or structure on land ... at which Schedule materials are present or likely to be present'. > > (b) 'Schedule' material means, in summary, a threshold quantity of specified material or the aggregate threshold quantity of more than one of these specified materials.

13. In lay terms, a MHF contains large amounts of particular chemicals or dangerous goods, and includes hydrocarbon processing and storage facilities.
14. There is no dispute that the Terminal, as a whole, remains a facility that contains the relevant materials, including hydrocarbon storage.
15. There is also no dispute that there are relevant materials on that part of the MHF that comprises the refinery area but it is unclear whether those materials exceed threshold quantities.
16. For example, storage tanks 906 and 605 exist in the north-east corner of the refinery area. Mobil says they are unheated, fixed roof storage tanks containing hydrocarbons. It says that the volumes in the tanks had been unchanged for some time when it gave the Council its advice. It also says that tank 605 has now been put back into use for temporary hydrocarbon storage from the decommissioning activities and the volume it contains varies.
17. Mobil concedes storage in these tanks will change because relevant boilers have been shut down and are unlikely to be heated again. Dr Thomas states volumes would be well below threshold quantities.
18. As a further example, there are hydrocarbons or other relevant materials in pipelines that traverse the refinery area, as part of the overall operations at the Terminal
19. Nonetheless, it is clear that the MHF category following the cessation of refining operations has changed from 'highly flammable' to 'flammable' and this has a consequence for WorkSafe's advice to which I will shortly refer.
20. Each licensed MHF must have a safety case verified by WorkSafe. The Terminal has a verified safety case (the safety case). The parties tendered a publicly-available document summarising the safety case.

1. In the information section, I have identified the planning scheme provisions relevant to the permit application. In this section, I briefly refer to those relevant to the MHF. It is unnecessary to refer to those that are relevant to the construction of the two dwellings.
2. For the purposes of the planning scheme, a MHF is not a specified land use but is characterised as an 'industry'. The MHF is in a Special Use Zone Schedule 2 to facilitate the use of the MHF for petroleum refining. The Council and Mobil implicitly accept this zoning will no longer be appropriate but that it is too early to determine what is an appropriate future zoning.
3. The most relevant policy in the planning scheme relating to a MHF is:

To minimise the potential for human and property exposure to risk from incidents that may occur at a major hazard facility and to ensure the ongoing viability of major hazard facilities.[11]

1. The policy contains various strategies including:

Consider the risks associated with increasing the intensity of use and development within the threshold distance of an existing major hazard facility.[12]

1. The relevant 'threshold distance' in that strategy is the distance included in WorkSafe's land use advisory guidelines (the guidelines).[13] In relation to the status of the guidelines under the planning scheme, the guidelines are neither an incorporated document nor a reference document. I will shortly refer to the guidelines in more detail.
2. The Council and Mobil support the introduction of a Buffer Area Overlay around the Terminal, following the Government's response to the MHF Advisory Committee Report in January 2018. No amendment has yet been prepared to introduce such an overlay.

1. Under WorkSafe's guidelines, there is an inner and outer safety area around the Terminal (as a 'flammable' category MHF) of 250 metres and 500 metres, respectively.
2. Distances are typically measured from a site boundary, but if there is a 'small facility footprint on a large site', distances may be measured from the facility boundary. The guidelines state this is 'consistent with a conservative approach to ensure community safety, recognising MHF's require some operational flexibility'.
3. The subject land is about 370 metres from the northern boundary of the MHF, being the northern boundary of the refinery area. This places the subject land in the outer safety area.
4. Under the guidelines, an outer safety area is:

... a precautionary safety area ... where the consequences of a major incident are not likely to cause a fatality but persons present may suffer some injury or adverse effects or be vulnerable in the event of a very large, potentially long duration major incident.

1. The guidelines go on to state that, in an outer safety area, WorkSafe may advise against developments:

... where people likely to be present are not able to safely respond to a potential emergency situation or the proposal may result in unacceptable social risk, for example, a large number of people present such as casual patrons at a health and fitness facility or students.

... that may set precedents for future gradual increase in population [but would be] reviewed on a case-by-case basis.

1. In advising the Council to refuse permission, WorkSafe followed the general guidance, as above, and emphasised that:

(a) the subject land is 'well within' the outer safety area; > > (b) the proposal will increase population at the subject land contrary to guidance within an outer safety area; and > > (c) although the increase of four bedrooms[14] 'does not present a large increase in population, it may set precedents for future gradual increase in population'.

1. Mobil had two main concerns with any grant of permission.
2. First, Mobil takes what I will describe as a cautious approach to risk. It says that although the risk from major incidents related to refining operations has been reduced:

... it does not alleviate all risks of major incidents connected to Terminal operations, including those potential incidents located within the [refinery area and blending area] from equipment that continues to be used in connection with ongoing Terminal operations.

1. The equipment at the refinery area that is still used for Terminal operations include the tanks and pipes to which I have referred.
2. Mobil said that the 'intensification of land activities' within the safety areas 'has the potential to prejudice its ability to continue [its] existing and lawful operations' at the MHF because additional population in the safety areas increases risks to people and assets if there is a 'low frequency-high impact event' at the MHF.
3. Second, Mobil in effect said permission would be premature because the future of the refinery area was still under consideration and the future footprint of the MHF was under review. Even though refining operations at the refinery area had stopped in August 2021, Mobil said the refinery area had existing use rights for a refinery until August 2023.[15]
4. Although Mobil had 'concerns' with granting permission, it did not formally object to granting permission. In fact, it told the Council in May 2022 that 'under the current planning policy frameworks ... our internal advice is that [Mobil] would not have grounds to pursue an objection through VCAT'.

1. Having regard to relevant MHF policy in the planning scheme, the first issue in this proceeding is whether the construction of the two dwellings and the resulting likely additional population in the outer safety area unreasonably increases exposure to risks of harm to people and property if there is a major incident at the MHF.

1. There is nothing in the safety case summary that identifies such risks specifically in relation to the subject land.
2. Although Mobil's full safety case was not tendered, Mobil said it is not required in a full safety case to document all potential effects from an incident, to document all potential impacts to all surrounding land, or to detail all impacts that could arise that could potentially affect nearby residents.
3. Mobil accepted that it relied on the guidelines when responding to the permit application rather than the MHF full safety case.
4. Without tendering all or part of the full safety case, WorkSafe said the safety case states 'there is, at present, no Major Incident identified with the potential to directly impact the subject site (ie with high levels of radiant heat, high overpressures from explosion etc)'. However, WorkSafe went on to state that all impacts are difficult to quantify 'such as exposure to smoke (which is highly dependent on atmospheric and weather conditions, and might affect vulnerable members of the community)'.[16]
5. In conclusion, I cannot make a finding that the full safety case for the MHF supports the Council's refusal of permission.

1. WorkSafe confirmed it did not carry out a formal risk assessment. It relied on an internal 'technical assessment' that carefully considered the guidelines and policy in the planning scheme. Mobil also did not carry out a formal assessment.
2. In summary, the objection by WorkSafe and the concerns expressed by Mobil were not based on a formal risk assessment.
3. Dr Thomas says, in effect, that a formal risk assessment would acknowledge that the risk of harm to people at the subject land from a 'vapour cloud explosion' at the refinery area, albeit 'very low', has been removed by the cessation of refinery operations. He says the 'only remnant' risk is that associated with the operation of the north tank farm, which is a lower overall risk than for refining operations and is a risk further distant from the subject land.
4. In the absence of a formal risk assessment or evaluation of the MHF full safety case, there is no prima facie reason to reject Dr Thomas' opinions.

1. WorkSafe's guidelines state the consequences of a major incident in an outer safety area are not likely to cause a fatality but people in the area may suffer some injury or adverse effects or vulnerability.
2. WorkSafe's policy is that it may advise against development in an outer safety area if development may set a precedent for future gradual increase in population but would advise only after assessment on a case by case basis.
3. Precedent is not a strong reason to refuse permission in this proceeding. It is rarely persuasive in any planning proceeding, having regard to the need to assess proposals on their individual merits.
4. Even if permission could be said to set some sort of precedent, it is not a strong one because it is only for one additional dwelling on a corner lot. A perusal of residential lot distribution in the Altona North shows a very small proportion are corner lots.

1. As the refinery has closed and as the MHF category has been lowered to flammable, there is less likely to be a major incident originating in the refinery area.
2. As I have stated, the default measurement method under the guidelines is the distance from the site of a proposal to the nearest boundary of the MHF. This distance is about 370 metres in this proceeding and hence the subject land is in an outer safety area under that method.
3. That method is not always the most appropriate. For example, the guidelines accept the measurement should be to the MHF facility if the facility has a small footprint on a large site. Other appropriate circumstances could exist.
4. The MHF 'facility' has not yet been removed from the refinery area but for practical purposes it is being phased out from this area. Even though the refinery area is formally part of the MHF it is on its way to no longer being part of the MHF 'facility'. This lessens the appropriateness of applying the default measurement method.
5. According to the Council and Dr Thomas, the subject land is 527 metres and 540 metres, respectively, to the nearest boundary of the north tank farm. This is the nearest boundary of any part of the MHF excluding the refinery area. This places the subject land beyond the outer safety area. The risk is therefore low and under the guidelines does not warrant refusal of permission.
6. Measuring the distance in this way for this MHF is not novel. The Tribunal recently measured the relevant distance in this way in Sizenko v Hobsons Bay CC[17] on a site closer to the refinery area and found the subject land was more than 500 metres from the north tank farm.
7. It is also relevant that Mobil accepted that when the future footprint of the MHF is finalised following closure of refining operations, the inner and outer safety areas 'may also be revised'.

1. The Council drew my attention to five cases since 2012 in the municipal district concerning use and development in safety areas.[18]
2. The most recent is Sizenko. The Council correctly focused on this case because the proposal the Tribunal considered was a mixed use development containing one four-bedroom dwelling in the same neighbourhood of Altona North. The subject land was only 110 metres from the northern boundary of the refinery area in the MHF. It fell within what is now known as the MHF's inner safety area.
3. The Tribunal granted permission for that development. WorkSafe and Mobil, as in this case, did not participate in the proceeding but, in advice to the Council, opposed the granting of permission.
4. The Tribunal took into account that the refinery had already closed and Dr Thomas' opinion that hydrocarbons would continue to be stored at the north tank farm. Mobil's advice, as in this case, was the future of the refinery area was yet to be determined. The distance from the subject land to the nearest point of the north tank farm was greater than 500 metres, as is the case in this proceeding.
5. A controversy in this proceeding concerned tanks 906 and 605. As I have mentioned, these two tanks are located in the refinery area and are closer to the subject land than the nearest tanks in the north tank farm.
6. The Council cautioned against applying the Tribunal's finding in Sizenko because the Council said Mobil did not advise the Council about these tanks in that case. Dr Thomas also gave evidence in that case and the Council said he did not draw the Tribunal's attention to the tanks and his evidence to the Tribunal was that tanks 904 and 908 at the north tank farm were the closest to the subject land in that proceeding.
7. The Council also relied on Mobil's advice, as I have already mentioned, that tanks 906 and 605 are still 'nominally in use (though static)' and that Mobil had not yet made a final operational decision on the future use or re-use of these two tanks.
8. Based on Mobil's submission filed after the hearing, I find that that the primary purpose of tanks 906 and 605 is to assist in the decommissioning of the refinery area and the secondary purpose is storage associated with the Terminal.
9. It is also unclear whether there is any material present in or likely to be present in those tanks that would in themselves require a WorkSafe licence. Mobil did not confirm one way or the other. Dr Thomas said the material in those tanks is not 'process fluids but [are] slops which are to be disposed of [and when] standing for long periods are generally less volatile and therefore less dangerous'.[19]
10. Accordingly, I prefer a finding that the subject land is not within a safety area under the guidelines.
11. For completeness, I have not overlooked that relevant material is present in or likely to be present in pipes in the refinery area connecting to tanks (or other equipment) in the north tank farm and blending area. I accept Dr Thomas' evidence that even if that material may be above threshold levels from time to time in those pipes, such material in pipes is primarily subject to a different non-MHF regime.

1. I agree with the Tribunal's conclusion in Sizenko that the net addition of one four-bedroom dwelling does not represent risks to a material number of additional people located on the subject land. While guests of the dwelling's residents may result in infrequent increases (eg at a child's birthday party), it is not the sort of frequency referred to in the guidelines such as at a fitness centre.
2. The residents of this one additional dwelling will not have particular vulnerabilities that might elevate risks. Although there might be a child or an elderly person present, the residents will not be wholly elderly as in a residential aged care facility, wholly infirm as in a hospital. or wholly young as children in a child minding centre or a school.

1. In assessing risk, it is relevant to consider the likelihood of safe evacuation if there is a major incident. I agree with Dr Thomas' assessment that a satisfactory evacuation plan can be prepared that provides for convenient access from the subject land to the north, away from the MHF.

1. The proposal does not unreasonably increase exposure to risks of harm to people and property if there is a major incident at the MHF.

1. While risk may be currently lower, the Council is correct in considering the future planning and use of the MHF and, in particular, the refinery area.
2. The planning scheme contains policy to protect existing industrial uses from encroachment by uses that would compromise safe functioning of those uses.
3. I give little weight to a submission that Mobil has an existing use right to re-start refinery operations that is yet to expire and that a cautious approach is necessary and that it would therefore be premature to grant permission for the proposal.
4. The closure of the refinery is a significant decision and event in terms of time and cost. There is no evidence from Mobil that refinery operations could in practical terms re-start before August 2023 even if Mobil decided in the near future to do so.
5. I agree with the Council and Mobil that the Special Use Zone Schedule 2 will need to be reviewed. I accept that the Council needs more time to determine what would be the more appropriate provisions of the planning scheme for the MHF. It is therefore also too early to determine if the future use of the refinery area would have the same or greater risk as the former refinery use. There is no seriously entertained planning proposal to which I can give weight.
6. In my opinion, the Council's submission that it is 'imperative' that there be no increase in sensitive uses in the inner or outer safety area to ensure the 'ongoing viability' of the SUZ2 area is overstated.

1. The Council's draft permit conditions are appropriate. I will include an emergency and evacuation plan condition of the kind included in Sizenko following Ms Abou-Zeid's submission that she did not oppose the condition.

1. For the above reasons, I will set aside the Council's decision and grant a permit subject to conditions.

1. Before the development starts, revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be substantially in accordance with the VCAT amended plans (prepared by Wardle Design, Rev. B, dated 8 November 2022) but modified to show to the satisfaction of the Responsible Authority:

a) A schedule of all external materials and finishes. The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames and paving (including car parking surfacing). The driveways are required to incorporate a high quality finish and not plain concrete. > > b) A landscape plan including the location of all existing and proposed species. The landscape plan should be designed in accordance with the Hobsons Bay Landscape Design Guidelines, December 2021. An emphasis must be placed on maximising the use of native drought tolerant species and must include: > > 1. The provision of at least one advanced canopy tree within the front setback of each dwelling. > 2. The provision of at least one advanced canopy tree within the rear yard of each dwelling. > 3. The canopy tree species selected should be listed within the Plant Selection list at Appendix 5 of the Hobsons Bay Landscape Design Guidelines 2021. > 4. A notation indicating a canopy tree must be a minimum 1.5 metres high at the time of planting. > 5. A notation stating that all stormwater infrastructure as required by condition 10 of this permit is to be located within the driveways and not in the areas set aside for landscaping. > 6. The nomination of a Tree Protection Zone in accordance with condition 6 of this permit. > 7. The landscape plan must: >
> > (a) Demonstrate commitment to BESS water efficient landscaping credit including mulching, planting selection and information on the drought tolerance/low water use capability of the various plant > > > > (b) Include the lawn/turf also in the planting schedule which must be of a drought tolerant variety > > > > (c) Be consistent with, and include a note on, the minimum vegetation area nominated in BESS Urban Ecology 2.1 Vegetation credit. > > > > (d) Be consistent with the WSUD plans and must show all the WSUD treatment systems (referencing their details to the SDA report and/or to engineer as appropriate). > > > > (e) Provide details of any non-vegetated permeable areas (including permeable paving/driveway, stepping stones, toppings etc.) via a schematic cross section diagram/s showing the surface layer and substrate layers demonstrating effective permeability of water into the ground. >

1. The site plan to nominate a Tree Protection Zone in accordance with condition 6 of this permit.

d) A notation on the site plan that electricity company connections to the proposed dwellings are provided underground. > > e) Notation stating the outdoor clothes drying facilities for each dwelling are freestanding and not attached to the boundary fence shared with an adjoining property. > > f) The site plan and elevation plan updated to show compliance with the sight line requirements of clause 52.06-9 of the Hobsons Bay Planning Scheme. Notations must be shown on the site plan identifying the changes required to comply with the sight line requirements of clause 52.06-9. > > g) A notation on the site plan stating that all stormwater infrastructure as required by condition 10 of this permit is to be located within the driveways and not in the areas set aside for landscaping. > > h) The existing crossover to Hatherley Grove modified to align with the proposed driveway (with a 500mm landscape bed provided along the fence line) at the cost of the owner of 30 Hatherley Grove.

1. The internal fence between the secluded private open space of the proposed dwellings to be at least 1.8m high to restrict internal views.

j) Details (including height, materials and design) of the fence enclosing the secluded private open space of Dwelling 2 shown on the plans. This fence must be a high-quality fence and must be a maximum 1.8 metres high. > > k) The capacity of the two storage areas of Dwelling 1 accurately notated on the plans.

1. In conjunction with the revised Sustainable Design Assessment required by Condition 7, the plans must be revised to show: * A notation included on the plans stating "Refer to the SDA/BESS/STORM reports for a comprehensive list of SDA commitments. The development must meet all commitments in the SDA even when not noted on plans". * All bathrooms to have access to an openable window, operable skylight, or exhaust fans controlled by humidity sensors. * The provision of daylight access to all garages via translucent garage door panels, glazed door to POS or skylight. * A notation included on the plans stating the rainwater tanks are to be connected to toilets. * The provision of minimum 15A dedicated circuit from switchboard to garage to provide the residents the option of installing their own Electric Vehicle charge points. * Light-coloured or reflective finishes specified for the non-visible flat roofs and exposed concrete driveway to help mitigate the urban heat island effect.

Any subsequent resubmission of the plans/drawings must clearly highlight the changes (e.g. clouds around changes) and must reflect all updates to the SDA and all associated reports where applicable.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.

1. Prior to the submission of a request for endorsed plans under this permit, the owner must lodge a bank guarantee or bond of $2,000 with the Responsible Authority to ensure the satisfactory establishment of landscaping works. Once landscaping has been completed in accordance with the endorsed landscaping plan, the Responsible Authority must be notified so a six-week establishment period will commence. The bank guarantee or bond will be returned after an inspection has confirmed the landscaping has been maintained for that period to the satisfaction of the Responsible Authority. After the establishment period, the landscaping must be maintained in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority.
2. Prior to the occupation of the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained to the satisfaction of the Responsible Authority
3. Prior to commencement of works, the following provisions relating to the protection of the existing street tree must be undertaken to the satisfaction of the Responsible Authority:
   1. A suitable Tree Protection Zone of 1.0 metre radius with barrier fence must be established around the street trees to be retained on the Hatherley Grove and Windsor Crescent frontages.
   2. The Tree Protection Zone must be enclosed using a 2 metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a 'Tree Protection Zone'.
   3. The area within the Tree Protection Zone must not be disturbed by any means (including parking of vehicles or storage of plant & equipment, materials, soil or waste).
   4. No excavation is allowed within the Tree Protection Zone except with the consent of Council's Town Planning Department and under the supervision of a qualified Arborist.

1. Concurrently with a request for endorsed plans under this permit a revised Sustainable Design Assessment (SDA) and BESS report must be submitted to and approved by the Responsible Authority. When approved the SDA will be endorsed and will then form part of the permit. The assessment and report must be substantially in accordance with those provided with the application, but modified to show to the satisfaction of the Responsible Authority:

a) A commitment to the use of low VOC paints, sealants and adhesives and E1 or E0-grade engineered wood products (e.g. MDF, plywood, engineered-wood flooring). > > b) The credit under IEQ 3.3 Thermal Comfort - Orientation removed as only one of the two units have a north-oriented living area. > > c) The WELS rating commitments of fixtures and fittings updated in the SDA to correspond with BESS entries. This must include the following commitments: > > 1. Provision of dishwashers as part of fit-out with a minimum of 3 Star WELS rating. > 2. Provision of washing machines as part of fit-out with a minimum of 3 Star WELS rating.

Note: If dishwashers and washing machines will not be provided as part of the fit-out, please change entries in BESS to default/unrated.

d) The vegetation area demarcated on the landscape plan accurately and entry in BESS updated. Note: The Urban Ecology 2.1 Vegetation credit must include only turfed or planting areas and cannot include other landscaping elements such as hard paving/pavers (including permeable paving), loose pavers/stepping stones aggregate/pebbles, synthetic grass, decks, pool, RW tanks, storage sheds etc.

e) A commitment stating that all steel is to be sourced from a Responsible Steel Maker, i.e. must have facilities with a currently valid and certified ISO 14001 Environmental Management System (EMS) in place and be a member of the World Steel Association's (WSA) Climate Action Program (CAP).

f) A commitment made for minimum 20% of the cement to be replaced with Supplementary Cementitious material (at least in the non-structural elements such as the precast walls). All concrete must use minimum 50% recycled water and recycled/alternative materials aggregate (minimum 40% for large aggregate and 25% for fine aggregate).

g) Commitment to minimum 70% reuse/recycling of construction and demolition waste made in the SDA.

1. The sustainable design initiatives listed in the endorsed Sustainable Design Assessment must be incorporated into the development to the satisfaction of the Responsible Authority.

1. All basic services including water, electricity, gas, sewerage, telephone and other telecommunication facilities must be installed underground. All above ground meters must be located to the satisfaction of the Responsible Authority.
2. Prior to commencement of the development, the owner must prepare stormwater drainage design plans to the satisfaction of the relevant Building Surveyor. An application to Council must be made for a Legal Point of Discharge for the disposal of stormwater from the subject land and to determine the relevant Council standards for the stormwater drainage system design. An on-site storm water detention system will be required if the volume of stormwater exceeds the capacity of the legal point of discharge.
3. The owner must meet the costs of all alterations to and reinstatement of, the Responsible Authority and other Public Authority Assets deemed necessary and required by such Authorities for the development. The owner must obtain the prior specific written consent of the Council or other relevant Authority to such alterations and reinstatements and must comply with conditions required by the said Authority in relation to the execution of such works.

1. Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:

a) Constructed. > > b) Properly formed to such levels that they can be used in accordance with the plans. > > c) Surfaced with asphalt or concrete unless another surface treatment is approved by Responsible Authority. > > d) Drained and maintained. > > e) Line-marked to indicate each car space and all access lanes.

Parking areas and access lanes must be kept available for these purposes at all times.

1. Any vehicle crossings must be constructed in the location shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like must be at the expense of the owner and approved by the appropriate authority prior to undertaking such works. Consent for such crossings must be obtained through Council's Contracts, Procurement and Asset Protection Department prior to construction.
2. Prior to the occupation of the development, the existing vehicle crossing facing Windsor Crescent must be removed and the footpath, kerb and channel reinstated and made good to the satisfaction of the Responsible Authority.

1. Before the development starts, an Emergency and Evacuation Plan (EAEP) must be prepared to the satisfaction of the responsible authority. The EAEP must include actions that will be undertaken for the land to be safely evacuated and must include the emergency management measures and actions that will be undertaken in the event of a hazardous incident occurring from the Mobil Altona Major Hazard Facility. It must also include:

(a) Premises details: > > * Describe property details. > * Identify the purpose of the EAEP stating that the plan outlines procedures for: > * Evacuation (evacuation from the site to a designated safer off-site location). > * Shelter-in-place only if it becomes too dangerous to evacuate (remaining on-site in a designated building). > > (b) Review of the EAEP: > > * Outline that the plan must be reviewed and updated every five years or other time period as agreed to by the responsible authority. > > (c) Emergency contact details. > > (d) Event monitoring procedures: > > * Details the use of radio, internet and social networks that will assist in monitoring potential threats during the hazardous emergency event. > * Describe and show (include a map) the area to be monitored for potential hazardous event activity (i.e. within 1 km of the site).

1. Before the development starts, the owner must enter into an agreement with the responsible authority under section 173 of the Planning and Environment Act 1987 to provide for an Emergency and Evacuation Plan in accordance with Condition 15.

Before the development starts, application must be made to the Registrar of Titles to register the section 173 agreement on the title to the land under section 181 of the Act.

• The owner under this permit must pay the reasonable costs of the preparation, execution and registration of the section 173 agreement.

1. Prior to the occupation of the buildings, all boundary walls on or facing the boundaries of the site must be either raked and cleaned (face brickwork) or rendered and painted or bagged and painted to the satisfaction of the Responsible Authority. Any protruding floor slab must be cleaned and trimmed flush with the wall to the satisfaction of the Responsible Authority.
2. All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
3. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit. > > (b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the period in which to start the development if a request is made in writing before the permit expires or within six months afterwards.

The Responsible Authority may extend the period in which to complete the development if a request is made in writing before the permit expires or within 12 months afterwards and the development was lawfully started before the permit expired.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] The Council gave both entities notice of the application under section 52 of the Planning and Environment Act 1987. Neither WorkSafe nor the EPA were referral authorities for the application.

[3] MobilExxon Australia Pty Ltd was the entity that responded to the Council before the Council decided the permit application. However, Mobil Refining Australia Pty Ltd filed submissions after the hearing at the Tribunal's direction. In those submissions, Mobil Refining Australia Pty Ltd said it was the entity within the ExxonMobil group that is involved with the MHF and with the refinery operations at the MHF. In these reasons, my references to 'Mobil' are references to Mobil Refining Australia Pty Ltd.

[4] Ms Abou-Zeid relied on a report filed by Dr Thomas.

[6] EPA, Recommended separation distances for industrial residual air emissions (Publication 1518, March 2013)..

[7] Mobil, written submission dated 10 March 2023, paragraph 11.

[8] Dr Thomas correctly identifies the north tank farm as in Williamstown not Altona and therefore doubts the correctness of the 'Altona' Terminal. He prefers Mobil 'Melbourne Terminal'. For convenience, I will refer to it as forming part of the Mobil Altona Terminal or the Terminal and part of the MHF.

[9] For example, Mobil now refers to the refinery area and the blending area as the 'former processing area' and 'former blending area', respectively.

[10] WorkSafe has granted a separate licence for the south tank farm but this licence, like the south tank farm, is not relevant in this proceeding.

[11] Planning scheme, cl 13.07-2S 'Objective'.

[12] Planning scheme, cl 13.07-2S 'Strategies' dot point 2.

[13] Victorian WorkCover Authority, Land use planning near a major hazard facility (28 April 2022).

[14] This being the increase from the existing four bedroom dwelling to the proposed two four-bedroom dwellings.

[15] Mobil referred to the effect of cl 63.06 of the planning scheme.

[16] WorkSafe, written submission dated 20 February 2023, p 2.

[17] [2022] VCAT 800 ('Sizenko').

[18] Shell Company of Australia v Hobsons Bay CC [2012] VCAT 1184; VJA Consultants Pty Ltd v Hobsons Bay CC [2012] VCAT 1846; JB & DP Milgate Pty Ltd v Hobsons Bay CC [2015] VCAT 1167; Day v Hobsons Bay CC [2016] VCAT 435; Xia v Hobsons Bay CC [2021] VCAT 1064; Sizenko v Hobsons Bay CC [2022] VCAT 800.

[19] Ian Thomas, report dated 15 March 2023, filed in accordance with Tribunal orders.