Appellant v First Respondent

Supreme Court of Victoria|2008-09-29|Before: OSBORN J

Appeal on question of law - decision of Victorian Civil and Administrative Tribunal to grant permit for four dwellings within an open potable water supply catchment - application of Ministerial Guidelines - 1:40 ha benchmark - relevance of planning scheme policy - application of the precautionary principle - failure to account of relevant considerations - s.60 Planning and Environment Act 1987 - Waters of Victoria State Environment Protection Policy - Environment Protection Act 1970 - Code of Practice, Septic Tanks On-site Domestic Waste Water Management 2003 - s.148 Victorian Civil and Administrative Tribunal Act 1998.

1 The owners[1] of land comprised in four adjoining lots in the Shire of Macedon Ranges wish to obtain planning approval to erect a dwelling house on each lot.

2 The four lots have a combined area of 72 hectares. Each of the lots has a frontage to the Campaspe River, which flows downstream into the Campaspe Reservoir (which supports the town of Woodend). In turn, the Campaspe Reservoir forms part of the water storage system within the catchment of Lake Eppalock.[2]

3 The site thus sits within what is classified as an open potable water supply catchment. It is open in the sense that it is not in public ownership and is open to access by private individuals without regulation by the catchment authority.

4 The four lots which are the subject of the present appeal are irregular in shape as a result of their river frontage and their respective areas range from 15.45 to 24.08 hectares.

5 The land is located about seven kilometres from Woodend and is currently used for agricultural purposes. It is located in a Rural Conservation Zone and covered by an Environmental Significance Overlay Schedule 4 (Eppalock Proclaimed Catchment) pursuant to the relevant planning scheme.

6 A permit is required to erect a dwelling pursuant to the zone control and there is a further permit requirement pursuant to the overlay control for buildings and works generally.

7 The decision guidelines relating to the permit control under the zone require consideration to be given as to how the proposed use and development conserves values set out in a schedule. Those values include:

To ensure that land use within water supply catchments, most particularly proclaimed catchments, will not compromise water quality.

8 The Environmental Significance Overlay states the environmental significance of the area in the following terms:

Lake Eppalock is a major water storage and recreational facility located within the Campaspe River catchment. It is a major source of water for irrigation, stock and domestic and urban water supplies for towns within the municipality.

9 It further states the following environmental objective (which guides the relevant discretion to permit buildings and works):

To ensure the protection and maintenance of water quality and water yield within the Eppalock Water Supply Catchment Area as listed under Section 5 of the Catchment and Land Protection Act 1994.

10 The discretion to grant a permit under both controls must be exercised in part having regard to the State Planning Policy Framework ("SPPF"). Clause 18.09-2 of the planning scheme states as an element of that framework:

Planning and responsible authorities should ensure that water quality in water supply catchments is protected from possible contamination by urban, industrial and agricultural land uses.

11 The discretion to grant a permit must also be exercised having regard to guidelines issued by the Minister for Planning pursuant to s.60 of the Planning and Environment Act 1987 ("the P&E Act"). Those guidelines are entitled the "Interim Guideline for planning permit applications in open, potable water supply catchment areas" ("the Guidelines").[3]

12 The Guidelines provide for a benchmark density of one dwelling in 40 hectares within an open potable water supply catchment.

13 The Macedon Ranges Shire Council ("the Council")[4] refused to grant a permit for the proposal on a series of grounds including grounds relating to water quality, and the owners sought to review the decision before the Victorian Civil and Administrative Tribunal ("the Tribunal").

14 In turn, the Tribunal overturned the Council's decision and directed that a conditional permit issue for the proposed dwellings. It arrived at its decision after a hearing at which the owner, the Council, Western Water being the catchment authority and an objector in person appeared.

15 The Tribunal's decision addressed two fundamental questions, namely whether the proposal accorded with the orderly and proper planning of the area in general terms and whether it was acceptable having regard to water quality issues. It formulated the critical issue in relation to the latter fundamental question as "would the proposed use and development result in an unacceptable risk to water quality?"

16 Western Water now appeals to this Court pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that the Tribunal erred in law in the manner that it approached and resolved this question.

17 The Tribunal commenced its assessment of the water quality issue by referring to cl.35.06-2 of the planning scheme (which forms part of the zone control):

The dwelling must be connected to a reticulated sewerage system or if not available, the waste water must be treated and retained on-site in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

18 It then set out the objections of Western Water to the proposed development.

The land is within the proclaimed catchment of the Campaspe Reservoir, which supplies drinking water to the Woodend township.

The proposed development provides for onsite wastewater treatment plants.

Onsite wastewater treatment plants pose a risk to water quality.

The greater the density of dwellings (and associated wastewater treatment plants) the greater risk to drinking water quality.

The dwelling density within the catchment already exceeds the benchmark of 1 dwelling per 40 hectares. Western Water opposes the further increase in dwelling density within the catchment of the Campaspe Reservoir.

The proposal is contrary to the policies and procedures of the Macedon Ranges Planning Scheme which specifically provide for the protection of proclaimed catchments.

19 It can be seen that this objection is not restricted to the adequacy of the proposal to treat and retain waste water on site in accordance with cl.35.06-2. It is expressly based on the proposition that although on-site waste water treatment is proposed, the density of dwellings and hence waste water treatment plants proposed, would create an unacceptable risk. The density proposed is said both to exceed the benchmark of one dwelling per 40 hectares and to be contrary to the policies of the Macedon Ranges Planning Scheme.

20 The Tribunal then referred to the evidence called on behalf of Western Water from Dr O'Connor, a scientist with relevant qualifications in respect of water quality. That evidence elaborated Western Water's objections.

Due to the proximity of the proposed on-site systems and their disposal fields to the [Campaspe] river, Western Water believes that the risk of contamination of the river is significant. Western Water accepts that the physical characteristics of each lot in the subdivision, renders them reasonably capable of treating and retaining all wastewater on-site, however, Western Water considers that there is a direct link between increased dwelling density and a reduction in water quality. Specifically, risks to water quality posed by septic tanks and on-site system(s) such as poor maintenance, design, installation, operator error or plant malfunction are increased with an increase in dwelling density.[5]

21 Dr O'Connor's evidence addressed the need to protect potable water quality, particularly the need to protect it from human pathogens. Dr O'Connor stated:

Sewage effluent can contain a wide variety of pathogenic micro-organisms. These waterborne pathogens may be separated into viruses, bacteria, protozoa (single-celled parasites) and Helminths (intestinal worms) (see Table 5-1). These pathogens frequently cause gastroenteritis and other disorders. Depending on the type of pathogen, typical symptoms of infection may include nausea, vomiting, diarrhoea, abdominal cramps, fever and chills, weakness, profound fatigue, delirium, severe inflammation of the intestine along with ulceration, and bloody stools. For some pathogens an unfortunately high proportion of those infected develop serious and even life threatening complications including encephalitis, meningitis, and kidney failure. For example, in about 10% of people infected with a virulent strain of the bacterium E. coli (the E. coli strain O157), the disease can progress into a more serious form, haemolytic-uremic syndrome which involves severe anaemia and kidney failure, often with a fatal outcome (Reilly 1998, Prescott et al. 199, Szewzyk et al. 2000).

22 Dr O'Connor referred to the Australian Drinking Water Guidelines (2004) (the ADWG), which advocate a "holistic" approach to water quality management, that includes the provision of robust multiple barriers to risk to water quality. The management of catchment land uses was said to be one of the layers in such an approach appropriate to cases such as the present one.

23 He emphasised the following guiding principles derived from the ADWG:

1. The greatest risks to consumers of drinking water are pathogenic micro- organisms. Protection of water sources and treatment are of paramount importance and must never be compromised.

2. The drinking water system must have, and continuously maintain, robust multiple barriers appropriate to the level of potential contamination facing the raw water supply.

24 Dr O'Connor stated Western Water relied on the Guidelines as establishing the recommended density of one dwelling per 40 hectares of land. His evidence was that an increase above this density "could increase the risk of contamination of water draining to the reservoir". He further expressed the view that the increased risk was unacceptable and inconsistent with the precautionary principle. I shall return to this principle in due course, but it can be seen that Western Water's case was that additional density above the benchmark referred to in the Guidelines would create an incremental and unquantifiable but unacceptable risk.

25 It is the manner in which the Tribunal dealt with these contentions, which forms the underlying basis of this appeal.

26 The Tribunal also referred to the evidence of Mr Glossop, a town planner, who gave evidence for Western Water that if one looked at dwelling densities within a one kilometre radius around the proposed dwelling sites, the effect of the proposal would be to increase the current density of dwellings above that between 1:15 to 1:30 hectares in respect of the different sites.

27 The Tribunal then turned to the submission made by the solicitor for the owners, which focussed on the fact that Western Water was prepared to accept two dwellings despite the fact that this would exceed the 1:40 hectare density. This submission crystallised in the proposition that Western Water's case involved "the conservative application of the precautionary principle to the Interim Guidelines".

28 Conversely, the case for the Council relied on the evidence of Dr O'Connor and asserted that there was a need to control the density of unsewered dwellings, arising from the cumulative risk of multiple systems in close proximity to the water supply system.

29 The amended application for permit indicated that septic tank disposal fields would be located between 165 metres to 550 metres from the Campaspe River, and in excess of 100 metres from farm dams, swales and depression drainage lines.

30 As the Tribunal recorded, it was common ground between the parties that a proper land capability assessment had been undertaken on behalf of the owners by an earth scientist, Mr Williams.

31 What was in dispute was the degree of risk attaching to the addition of four septic tank systems within the potable water supply catchment in the location proposed.

32 The Tribunal then turned to the statutory planning and policy considerations relevant to the application. It referred to s.53M of the Environment Protection Act 1970 which provides inter alia that a municipal council must refuse a permit if a proposed septic tank system:

(b) is contrary to any State environment protection policy or waste management policy.

33 I interpolate that the State Environment Protection Policy (Waters of Victoria) ("the Waters SEPP") requires the application of the precautionary principle to guide decisions about the protection and management of Victoria's surface waters. It states:

The following principles form the basis of the Policy and should be used to guide decisions about the protection and management of Victoria's surface waters ...

(a) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(i) a careful evaluation to avoid serious or irreversible damage to the environment wherever practicable; and

(ii) an assessment of the risk weighted consequences of various options.

34 The permit with which s.53M of the Environment Protection Act is concerned is a septic tank permit issued pursuant to that Act. It is not the planning permit with which the Tribunal was concerned. Nevertheless, it is apparent that the planning and environmental controls imposed on septic tank systems are intended to operate in a mutually compatible and supportive fashion. More particularly, the Tribunal is required by s.84B(2) of the P&E Act when considering an appeal to it, to take account of and give effect to any relevant State environment protection policy.[6] Furthermore, cl.35.06-2 of the planning scheme quoted above requires that waste water for a dwelling be treated and retained on-site in accordance with the Waters SEPP. It follows that the Waters SEPP was relevant to the Tribunal's considerations although not by reason of s.53M of the Environment Protection Act to which it referred.

35 As the Tribunal recorded, the Waters SEPP imposes the following relevant requirements:

First, on-site domestic waste water needs to be managed to prevent the transport of nutrients, pathogens and other pollutants to surface waters and to prevent any impacts on ground water beneficial uses. (Perhaps self-evidently the notion of beneficial use embraces the notion of the use of potable water for human consumption.[7]);
Second, municipal councils are required to develop and implement a domestic waste water management plan that reviews land capability assessments and available domestic waste water management options to prevent the discharge of waste water beyond allotment boundaries and prevents impacts on groundwater beneficial uses; and
Third, the Waters SEPP also requires occupiers of premises with an on-site domestic waste water system to manage that system in accordance with permit conditions and the Code of Practice - Septic Tanks On-Site Domestic Waste Water Management (2003) ("the Code").

36 The Tribunal then referred in some detail to the Code which sets out requirements intended to provide for:

integrating consideration of on-site waste water management with the land development process;
designing on-site waste water treatment systems;
installing on-site waste water treatment systems; and
operating and maintaining on-site waste water systems.

On-site effluent disposal is based upon a risk minimisation approach. Under favourable circumstances and with proper management, land application of effluent can be sustainable. Most problems associated with effluent application are due to malfunctions or breakdowns of the processing plant, or from inadequate initial planning and on-going maintenance of a proper land application area.[8]

38 The Code itself thus explicitly acknowledges risks of the type identified by Dr. O'Connor.

39 The Code utilises buffer distances as an additional layer of protection beyond requirements for proper design, installation and maintenance of septic tanks. These are described as "default minimum distances" and the set-back applicable in the present case is 100 metres from a water course.

40 The Tribunal highlighted the statement in the Code that the objective of a set-back distance is to protect human health and the beneficial uses of the environment. It recorded that the Code contemplates increases in buffer distances "... when there are particularly high risks associated with a development". At [94] the Tribunal stated:

The Code of Practice recognises that septic tank systems not only require correct location with respect to land capability requirements, but be correctly operated. These two requirements are the first tier in the risk management process. The adoption of set back buffer distances forms a second tier of risk management in the event of breakdown in the first tier.

41 It can be seen that in the present case both Western Water and the Council contended for a further level of control beyond the provision of septic tank systems in accordance with the Code and the provision of appropriate buffer distances. The authorities contended for a control over the density of the provision of potential pollution sources within the open potable water catchments.

42 The Tribunal turned from the Code to the Guidelines which are applicable to the assessment of planning applications for permits for use and development in open potable water supply catchments. As the Tribunal recorded, the Guidelines recommend a dwelling density of no greater than one dwelling per 40 hectares.

Where a planning permit is required to use land for a dwelling or to subdivide land:

the density of dwellings should be no greater than one dwelling per 40 hectares (1:40 ha); and
each lot created in the subdivision should be at least 40 hectares in area.

a catchment management plan or similar project addressing land use planning issues has been prepared for the catchment, and the objectives, strategies and requirements of the plan or project have been included in the planning scheme; and
a land capability assessment for the on-site management of domestic wastewater has been completed which shows that a greater or lesser minimum subdivision area and density of development is appropriate.

The land capability assessment should be undertaken in accordance with the requirements of Appendix A to the Code of Practice - Septic Tanks, On-site Domestic Wastewater Management, Environment Protection Authority, March 1996, to the satisfaction of the responsible authority.

The Environment Protection Authority is preparing an information bulletin which will set out in greater detail, the procedure and criteria for preparing a land capability assessment and will supplement Appendix A.

44 Guideline 2 also made provision as follows with respect to effluent discharge and septic tank maintenance:

All dwellings must be connected to a reticulated sewerage system if available. In the absence of a reticulated sewerage system, an approved on-site treatment system must be installed in accordance with the Code of Practice - Septic Tanks, On-site Domestic Wastewater Management, Environment Protection Authority, March 1996.

A permit must be obtained from the local council for the installation of a septic tank system, and any planning permit approval will be conditional on approval of a septic tank system permit.

Septic tank systems must be maintained correctly, to the satisfaction of the council and will be subject to regular inspections undertaken by the council. Maintenance should include inspecting the septic tank annually, and desludging the tank at least every three years.

In the case of a development that proposes multiple allotments, a neighbourhood treatment plant that is designed, installed and maintained to the satisfaction of the responsible authority may be considered in lieu of on-site treatment for each allotment.

To ensure a measure of protection of water quality, the Code of Practice specifies that subsoil septic tank systems (including the effluent disposal areas) should be located at least:

60 metres from any surface waters;
100 metres from any surface waters within a special water supply catchment area declared under the Catchment and Land Protection Act 1994;
200 metres upslope from a domestic supply channel; and
300 metres from a domestic water supply reservoir.

Where these setback distances cannot be achieved, consideration should be given to a higher level of effluent treatment before discharge to the disposal system.

Bushes, shrubs and trees should generally not be permitted to grow directly over effluent disposal areas, to minimise problems should the system need to be dug up for maintenance.

Where possible, existing vegetation should be retained and suitable tree species should be planted on the periphery of effluent disposal areas to assist with transpiration rates.

Refer to the Code of Practice for information about suitable tree species to be planted near effluent disposal areas.

Vegetated corridors and buffer zones along waterways

Planning and responsible authorities should encourage the retention of natural drainage corridors with vegetated buffer zones at least 30 metres wide along waterways. This will maintain the natural drainage function, minimise erosion of stream banks and verges and reduce polluted surface run-off from adjacent land uses. The corridors and buffer zones should be fenced to minimise erosion and sediment discharges caused by the intrusion of stock, domestic animals and vehicles, and should be vegetated using indigenous plant species. Where possible, land outside the corridors and buffer zones should also be planted with suitable species to assist in reducing sediment and nutrient loads reaching waterways (and, therefore, the potential for blue-green algal blooms), and to prevent erosion.

46 It can be seen that the Guidelines are formulated in terms which expressly reflect a multi level approach. The first guideline controls the density of dwellings; the second relates to the form and location and maintenance of effluent disposal systems; and the third provides for protection and enhancement of waterways.

47 The Guidelines themselves have their origins in a decision of the Tribunal which recognised the difficulty inherent in assessing the potential risk of cumulative developments on a site by site basis.[9] In that decision Member Liston concluded that the question was of such general importance that it should be referred to the Governor in Council.

It is the Tribunal's conclusion that these appeals (other than the Somes appeal) raise a number of issues which are more properly the province of Government rather than of the Tribunal. These issues include, the balance of interest to be struck between the persons who depend upon a reservoir for water supply, and the persons who are in rural land within the water supply catchment, the level of risk associated with development within water supply catchments in relation to public health, and the broader economic issues which arise from the possible responses to these issues. The solution to the development created by these applications for review might be:

To do nothing, to rely on the existing policy framework, and permit application processes to produce a workable and acceptable result;
Solutions which are essentially outside the existing planning system, such as yet an unthought of technical fix, or some form of inspection/maintenance regime in relation to septic systems or a combination of both;
A planning system based approach which could include more restrictive controls, or more highly developed policy framework like that which for example exists between the Good Design Guide and medium density housing in the metropolitan area, or a combination of both these approaches.

The Tribunal acknowledges that the implementation of a satisfactory response to the policy issue raised by these appeals may be such that an interim solution is required in relation to these individual applications.

48 In the event the Guidelines reflect the approach of more highly developed policy framework envisaged as a potential solution by the Tribunal, but they have not in eight years progressed past the interim solution which the Tribunal also foresaw.

49 As the Tribunal in the present case recognised, the Guidelines have formed the basis of a series of decisions in which the Tribunal has adopted a precautionary approach and not permitted development exceeding the one to 40 hectare benchmark.[10] That approach was articulated by Member Monk in the case of the Leonard v Moorabool City Council and Central Highlands Region Water Authority[11] relating to a relatively small allotment.

However, if compliance with this Code was all that was required of residential developments within a potable water supply catchment it could reasonably be anticipated that the only control necessary in such areas or indeed elsewhere within the Rural Zone would be for compliance with this Code. However this is not the case.
The water authority is not in a position to state at what intensity of human settlement or indeed agricultural intensity the quality and quantity of potable water in the catchment might be compromised - other than to accept that at an intensity of one per 40 hectares and with appropriate watercourse setbacks there is unlikely to be much of a problem.
Below this the proximity of a site to an uptake reservoir and/or tributary stream or more particularly the time taken for surface and sub-surface waters to reach the reservoir has relevance, as do issues such as the long-term maintenance of waste disposal systems and the other impacts of human settlement associated with residential use.
The water authority concedes that in the vicinity of the subject site an intensity of 1 to 40 hectares may be unduly conservative given the 15km distance from the reservoir albeit that a watercourse is proximate. It was Mr Glossop's submission that the Authority could be prepared to accept a ratio of 1 to 30 hectares, established by calculating the number of dwellings within a 1km radius to the proposed dwelling. Applying this test the addition of the proposed dwelling would give an intensity of 1 to 18 hectares applying Mr Glossop's calculations or one to 20 hectares applying Mr Iles' calculations.
On either measure the resultant intensity is significantly lower than 1 to 30 hectares.

The construction of a dwelling on this 2.76 hectare lot would convert the land for all time to a residential purpose. Inevitably it would set a precedent for other such lots to be so converted, thereby upping the value of such holdings within the catchment and at the same time reducing their economic viability for agricultural use. If, over time, more and more of these lots were to be converted, all with the need for individually maintained waste systems and with the many other associated impacts of residential occupation, then the water authority's concerns could well be realised. In the circumstances I find myself unable to ignore the strategic discouragement for such small, out of township, rural allotments to be converted to residential use.

50 The approach exemplified by this decision expressly recognises that the policy framework makes clear that compliance with the Code is not of itself sufficient. The resultant density of development within the catchment must be considered in the light of the Guidelines. In the present case the Tribunal recognised that other divisions of the Tribunal had not regarded it as sufficient that the permit applicant established compliance with the Code both with respect to land capability assessment and the provisions of an adequate waste water treatment system.

51 It noted, however, that in LW Properties v Moorabool Shire Council[12] Senior Member Marsden and Member Taranto described the Guidelines, insofar as the density benchmark was concerned, as "something of a blunt instrument a guideline which is indicative rather than regulatory". While describing a proposal that would result in 75% of the recommended density for a four dwelling proposal as being of concern, the Tribunal in that case expressed the view that they would not have refused the application purely on the basis of water quality issues.

We not only agree with this latter comment of Members Marsden and Taranto we re-affirm the view that the 1:40 ha density guideline is a blunt instrument. It is evident that the guideline is no more than that, as it holds no statutory import.[13] However, we do not dismiss the Interim Guideline. The weight we give to it is that 'guideline 1' provides a trigger that requires water quality issues to be examined more critically where the proposal results in a density of more than one dwelling per 40 hectares.[14]

53 Western Water and the Council now contend before this Court that the Tribunal erred in law:

(a) in referring to the Guidelines as having no "statutory import";

(b) by treating the Guidelines as no more than a trigger requiring more critical examination of water issues than would otherwise be necessary.[15]

54 As to the first contention it is common ground that in fact the Guidelines have been adopted by the Minister responsible for the P&E Act, within the meaning of s.60(1A)(g) of the P&E Act.[16] That subsection provides:

(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider -

(g) any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council; ...

55 Although s.60(1A) provides that the responsible authority "may" consider such a guideline, it is its duty to do so when it is plainly relevant to the subject matter of the permit application.[17]

56 It follows that the Guidelines did have statutory import.

57 This said, they were of course a matter required to be considered, rather than a matter required to be given effect to. This follows from their description as a "guideline" and their expressed intent to "assist" rather than govern a decision and from the very terms of s.60(1A)(g) of the P&E Act.

58 The owners submit that the Tribunal is simply to be understood to have used loose language, and that nothing flows from such usage, because the Tribunal immediately went on to make clear that it did not dismiss the Guidelines as irrelevant and it then proceeded to assess the application in the light of the Guidelines.

59 It is well established that the decision of a lay tribunal should not be read too legalistically.[18] This general principle has been applied to decisions of planning appeals tribunals in this State for many years.[19]

60 In my view, the reference to a lack of "statutory import" is not of itself sufficient to demonstrate a vitiating error of law.

61 The Tribunal went on to substitute for the terms of the Guidelines the notion of a trigger which postulates more critical than otherwise examination of water quality issues. In my view, Western Water and the Council are correct that in the result, the Tribunal substituted for the criteria of the Guidelines a more general approach.

62 Nevertheless, if that general approach was given effect in the present case by reference to the criteria of the Guidelines, it would be difficult, if not impossible, to say that the Tribunal committed a vitiating error of law.

63 Counsel for the owners submitted that in substance the Tribunal had considered the criteria of exception to the 1:40 benchmark contained in the Guidelines.

64 That benchmark does not apply if two criteria are satisfied. Western Water and the Council contend that in the present case only the second criterion (requiring a land capability assessment) could be regarded as met,[20] but the owners contend that on proper analysis of the planning scheme the first criterion (relating to the inclusion of catchment management plan provisions in the planning scheme) was also satisfied.

65 After formulating the concept of a trigger, in the terms I have already set out, the Tribunal went on to state:

In triggering the need to more carefully consider the potential water quality impacts the guideline allows for consideration of what other policy and strategies are in place to protect water quality and the ability for a development to demonstrate that a greater density of dwellings can be accommodated.[21]

66 The Tribunal then turned to cls.22.03 and 22.19 of the planning scheme. Clause 22.03 sets out local policy relating to catchment management and water quality protection. The stated basis of the policy is as follows:

Macedon Ranges Shire contains a number of potable water supply catchments. A number of these are proclaimed catchments with some including specific Land Use Determinations under former Soil Conservation and Land Utilisation Act 1958.

These catchments provide drinking water for local residents as well as communities including Sunbury, Melton, Bacchus Marsh, Castlemaine and Bendigo.

Most of these areas are open catchments. The integrity of the water supply, both from surface watercourses and groundwater, is threatened by inappropriate land use or development. Water quality is largely determined by the quality of and management and farming practices of private landowners. The lack of reticulated sewerage and the dependence on septic tank systems for effluent disposal in many urban and rural areas of the Shire is of particular concern.

Unplanned and inappropriate patterns of development can undermine water quality in catchments which may lead to increased treatment levels and higher water tariffs. The appropriate management of the water catchments is essential for the protection of the quality and quantity of domestic, agricultural and commercial water supplies. It is also important for the maintenance of reservoirs and watercourses as recreational resources.

67 It can be seen the dependence on septic tank systems within open catchments is flagged as being of particular concern. Furthermore, inappropriate patterns of development are identified as potentially undermining water quality in catchments.

68 In turn, the objectives of the policy are as follows:

To protect and enhance water quality, both surface and ground water.

To discourage land use and development that would undermine water quality.

To improve catchment management practices in the Shire, especially the management of proclaimed catchments and areas with Land Use Determinations.

To apply the regional catchment strategy as adopted by the relevant regional Catchment Management Authority.

To ensure that development which cannot be serviced by a reticulated sewerage system is designed, sited, maintained and managed to prevent the contamination of water supplies in the catchment.

To ensure that the design of effluent disposal systems is suitable to the soil type and topography of the site.

To encourage the re-vegetation of catchments and protect watercourses from degradation and erosion.

To actively discourage land use and development that will undermine water quality in the potable water catchment will not be supported and will be actively discouraged [sic].

69 The fourth objective makes clear that the intention of the policy is to apply the regional catchment strategy adopted by the relevant catchment authority. I take the plain meaning of this to be a strategy plan of the type contemplated by the Guidelines.

70 Both the second and the last objectives are in turn clearly directed to controlling inappropriate development which "undermines" water quality as distinct from ensuring the provision of adequate effluent disposal systems.

Where it is considered that proposals to change the use of land or for new development may be incompatible with any regional catchment strategy or pose a threat to the ongoing maintenance of water quality the views of the following may be sought, as appropriate:
- Department of Natural Resources and Environment
- Coliban Water
- Western Water
- Southern Rural Water
- Goulburn-Murray Water
- North Central Catchment Management Authority
- Port Philip Catchment and Land Protection Board

(In proclaimed catchments planning permit applications must be referred to the relevant water supply authority pursuant to Section 55 of the Planning and Environment Act 1987).

Applications for planning approval for land located within proclaimed catchments (as identified in the table above) may be required to be accompanied by a report, prepared by an appropriately qualified person, which conclusively demonstrates that the proposal will not compromise water quality and is consistent with any Land Use Determination applicable to the land.
The development of land in rural areas will take into account any approved local Landcare policies and plans.
New land use and development shall be consistent with the relevant Catchment Strategy for the area.
Conditions may be included on permits to address existing land degradation and prevent further land degradation. Such conditions may require works such as revegetation and fencing of waterways.
Development of commercial, residential or industrial land uses will not be permitted unless it can be conclusively demonstrated that such an activity will provide a net benefit to the stability of health of the waterway.
Clearance of vegetation will not be supported within 20 metres of a watercourse without the consent from the relevant water authority.
All activities requiring planning approval within 100 metres of a watercourse will be referred to the relevant water supply authority.
All effluent disposal systems, effluent and irrigation fields will be located at least 100 metres from any watercourse. Discretion to reduce this setback can occur when topographic constraints would prevent the discharge of waste water to a watercourse.
Package treatment plants and other alternative methods of waste water treatment that recycle waste water for use in domestic gardens and irrigated areas will be considered where appropriate. Certification that the proposed systems are licensed to operate in Victoria must be provided.
Proposals involving the use of septic tanks and/or other forms of waste water treatment must demonstrate that they will not be detrimental to the quality of water in the catchment.
Council may require a report to be prepared certifying that the proposed density of septic tanks within the area:
- Will not overload the natural environment with effluent and lead to pollution of watercourses or other properties.
- That the design and location of septic tanks is appropriate to the site and environmental characteristics of the allotment.
- That the disposal of effluent and will not result [sic] in the discharge of waste water from the site.
Council will consider the need to include litter traps and artificial wetlands in development proposals to improve the quality of discharge from new developments prior to discharge to water courses and to minimise the amount of sediment and litter entering water ways from new development.

72 The policy goes well beyond requiring the provision of appropriate effluent disposal systems and the provision of adequate set backs between effluent disposal systems and sensitive watercourses. Most significantly, it requires conclusive demonstration that residential land use development will provide a net benefit to the stability of health of the waterway. It also envisages Council may require a report specifically certifying that the proposed density of septic tanks within the area is appropriate. It thus directly addresses the question of the cumulative impact of a proposal as distinct from the design of the proposal itself.

73 The policy reference documents include the Campaspe Water Quality Strategy 1997, which was not tendered to the Tribunal and hence is not in evidence before me. Nevertheless, on its face it constitutes the strategy to which reference is made in the objectives.

74 In turn, cl.23.19 of the planning scheme relates specifically to the Northern Catchments within the Shire which include the catchment in issue in this case. The statement of policy basis includes the statement that:

It is important that land use within the Northern Catchments area does not have a negative impact on water quality as well as protecting the agricultural productivity of the area.

development, including dwellings, are related to agricultural production;
that further fragmentation of land is avoided;
land capability studies are undertaken where uses that are not connected to sewer are proposed.

75 The first objective of the policy is to protect water quality in the Northern Catchments. In turn, the policy includes the following elements:

A planning permit will only be granted in this area where it can be conclusively demonstrated that the proposal will not compromise water quality in the catchment. The applicant must provide a comprehensive assessment to Council demonstrating that this issue has been considered, assessed and addressed. This assessment must address issues (where relevant) such as effluent disposal, potential for off site run off including soil and animal effluent, on-site dams, protection of remnant vegetation.
In granting a planning permit for use or development in this area, Council may require on property works to enhance water quality. These works may include fencing of gullies and waterways, revegetation of gullies and waterways.

76 It can be seen that the policy envisages conclusive demonstration that the proposal will not compromise water quality in the catchment.

77 Counsel for the owners submits that these policies satisfy the first limb of the exception to the 1:40 hectare benchmark provided for in the Guidelines.

78 In my view, the relevant policies are fairly characterised as comprising objectives, strategies and requirements giving effect to a catchment management plan.

79 An incidental factor supporting this conclusion is the fact that the requirement with respect to certification concerning the effects of density, could in a given case be tougher than the 1:40 benchmark.

80 Western Water and the Council object that in the absence of further evidence as to the catchment planning exercise which formed the basis of the planning scheme provisions, it should not be accepted that the benchmark does not apply. The onus is, however, on Western Water and the Council to show that the Tribunal was not entitled to regard the planning policy as meeting the intent of the Guidelines. I am not satisfied that they have done so.

81 It was also submitted on behalf of Western Water and the Council that because the policy provisions predate the Guidelines they could not be regarded as meeting the terms of the Guidelines. I do not accept this submission. It seems to me that the terms of the Guidelines are neutral as to when the relevant catchment management plan or similar project need be prepared. They do not, as a matter of language or logic, preclude reference to an existing catchment management plan or similar project provided it has resulted in provisions in the planning scheme covering the field contemplated by the Guidelines. The planning scheme provisions to which the Tribunal adverted do, in my opinion, cover this field.

82 It follows that I accept that it was open to the Tribunal to treat both the criteria stated in guideline 1 by way of exception to the 1:40 hectare benchmark, as being met.

83 Having adverted to the policy requirements the Tribunal, however, stated that in both clauses the "policy relies on the assessment of the land's capacity to provide for containment of waste water within the site, i.e. a land capability assessment, consistent with the Code of Practice and the Waters SEPP."

84 Taken in itself this observation is correct, but it is not correct if it is intended to imply such an assessment is envisaged to embrace all the factors which the planning scheme recognises as relevant to a decision as to whether a septic tank system is appropriate in planning terms.

85 In particular the policy expressly envisages that density considerations may still arise, even if a satisfactory land capability assessment is undertaken. Further, the terms of both policies speak of conclusive demonstration that impacts are acceptable in a context which acknowledges a risk that cumulative development may undermine water quality.

86 Indeed, cl.22.03 goes further and envisages conclusive demonstration that permitted residential use will provide a net benefit to the stability and health of the waterway.

87 In so doing, of course, it remains no more than a policy rather than a prescriptive requirement, nevertheless it covers the field envisaged by the Guidelines and highlights the relevance of the issue of potential cumulative impact from septic tanks within open catchments.

88 The Tribunal recorded that it was satisfied that a proper land capability assessment had been undertaken for each dwelling in the present case. It then went on to find that in its view having regard to the policy requirements set out in cls.22.03 and 22.19, such assessments satisfactorily addressed the issue of locating septic tank systems in the potable water supply catchment. Further, the conditional requirements set out in the Guidelines for a density other than 1:40 hectares had in its opinion been satisfactorily addressed.

89 It therefore dismissed "the conservative application of the 1:40 hectare density by Western Water".

90 It expressed the view that the land is capable, with appropriate management, of containing domestic waste water "such that the risk presented to human health and the environment is not so high as to warrant refusal of the proposal".

91 The Tribunal then turned to the question of risk of poor design and management. It referred to evidence from Dr O'Connor citing research supporting the view septic tanks are often potential risks to human health due to high levels of pathogens in discharge to waterways.

92 The Tribunal discounted this evidence on the basis that much of the data in issue related to older style septic tank systems and not what is now required by the Environment Protection Authority.

93 It further observed that the proper management of such systems is the obligation of the landowner and that that obligation is subject to regulatory enforcement. It concluded on this aspect:

We find that a reliance on the premise that an owner may not manage the systems appropriately is not a valid basis for refusing a permit. This is particularly so when no evidence has been provided to back up the assertion. The conditions of the permit set out the requirements to be met. It is reasonable to expect compliance just as it is reasonable for us to expect that the council and WW will also carry out their respective inspection and enforcement functions.

94 The Tribunal then returned to the precautionary principle. It referred to a decision of the Commonwealth Administrative Appeals Tribunal to the effect that the precautionary principle is not concerned with "bare possibilities" of serious or irreversible environmental damage.[22]

95 The fundamental thrust of this principle is well understood. In Leatch v National Parks and Wildlife Service[23] Stein J said of it:

The precautionary principle is a statement of common sense and has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision makers should be cautious.[24]

96 The terms of the principle are stated in the Waters SEPP in ordinary English words. The application of those words must be flexible to embrace land uses of potentially novel kinds. Their meaning in any given situation is in my view a question of fact.[25]

97 That meaning is not to be ascertained by reference to a judicial gloss on the meaning of the words used to state the principle. The decisions of previous tribunals of fact may offer useful guidance in a particular case but they do not define the principle. The meaning is on the other hand plainly intended to be informed by scientific understanding of the risk in issue in a particular case.

98 In the present case the Tribunal accepted the submission made on behalf of the owners that Dr O'Connor's evidence was one of fears that the cumulative risks of many systems in proximity to water supply streams will increase the risk of a system failing and therefore impact surface water and the drinking supply quality. It further accepted the submission that such fears do not translate to there being a risk of "serious or irreversible damage to the environment".

99 The initial reasons stated for these conclusions were expressed as follows:

Having regard to the matters considered by the AAT[26] and the manner by which the precautionary principle is espoused in the relevant statutes, we consider that the proper application of the precautionary principle requires proportionate addressing of identified risks even if those risks are not fully defined. The principle addresses risks that are of a serious or irreversible environmental damage. This is an important point and implies that the risk of environmental damage is to be so severe as to impose some long term liability to future generations (i.e. it draws in the principle of intergenerational equity).
It is apparent to us that the evidence of Dr O'Connor is about the balance of probabilities of a number of factors coming together to cause an impact but from his evidence, one that is not an irreversible environmental impact or long term liability with no immediately available recourse or redress. What Dr O'Connor speaks of is the possibility of an event that requires a higher level of management input by the water authority and may result in some public health issues over the short term. This is not to discount the seriousness of an outbreak of some contagious disease. Rather in the event of specific septic tanks being the culprit of poor water quality, we envisage that immediate and readily applicable processes can be set in place to address the situation. Water will be treated, drinking water may have to be boiled, systems will be flushed and people will receive medical attention. The consequence of such an event is not however, one of irreversible environmental damage in the context of the precautionary principle.

100 The Tribunal then further referred to Dr O'Connor's evidence concerning the additional cost and management required if septic tank systems were allowed in potable water catchments and concluded:

We do not think that it was Dr O'Connor's intention to lead us to believe that if septic tanks remained at a 1:40ha density within the catchment that no treatment or a lesser degree of vigilance or treatment would be required by WW. Rather, it was his evidence that any increase in risk to water quality results in an unacceptable impost on WW due to an increase in the level of vigilance (and possibly treatment).

Given our reasons above, we do not believe that this conclusion stands up to scrutiny against the proper consideration of the precautionary principle. It is not a matter of any risk. It is a matter of the gravity of the risk. Consideration of the proposed septic tank systems against the Code of Practice, Interim Guidelines and other applicable policies indicates that with proper management (e.g. locating disposal fields well above the minimum buffer distances, use of aerated systems that discharge a higher quality of treated wastewater, regular maintenance etc) the risks are minimised to an acceptable level. The possible chain of events that would lead to impacts to water quality from this development as put forward by Dr O'Connor are essentially speculation on his part as to the consequences of extreme events and casual links. (sic) We do not accept that this is either a proper consideration of the risks or application of the precautionary principle.

102 Western Water and the Council now contend that the Tribunal misapprehended and misstated the precautionary principle.[27] In particular the Tribunal took the position that a risk of irreversible environmental damage was necessary to invoke the principle.

103 I accept this submission. This is the plain meaning of the words the Tribunal used. The principle is potentially invoked by a risk of serious environmental damage. It is not necessary that such a risk "be so severe as to impose some long term liability to future generations". If there is a risk of serious environmental damage it need not be one of irreversible environmental damage in order for the precautionary principle to be invoked.

104 Moreover, in the present case the application of the principle was a question of material sensitivity, because as I have said, the Tribunal's discussion of local planning policy in the context of the Guidelines, did not acknowledge or directly address the issue of cumulative risk resulting from increased dwelling densities.

105 In essence, the Tribunal accepted the provision of a satisfactory land capability assessment, coupled with the design of a septic system in accordance with the Code as achieving a satisfactory result.[28] Such an approach does not adequately address the cumulative risk factor recognised both by the Guidelines and the terms of the planning scheme policies either at all, or within the context of the precautionary principle.

106 The fact that the Tribunal regarded compliance with the Code in itself to be a satisfactory basis for the assessment of risks is confirmed by the following further statements:

We would however wish to add a note of caution here. Our findings must not be read as open slather for increasing densities of dwellings and septic tanks in open water supply catchments. While we have serious reservations as to the blunt instrument approach of the interim guidelines of adopting a 1:40 ha density, we acknowledge that there is sufficient weight of evidence within the water industry that at some point, an increase in dwelling density, and more specifically septic tanks systems, can increase the risk of water contamination to an unacceptable level. The question remains as to what this level may be.
We are of the opinion that there is not a "one size fits all" answer to this question. Each application must be considered on its merit. The practice and science of catchment management and water quality protection is sufficiently understood to be applied judiciously to arrive at a fair, equitable outcome that responds to the principle of integration of economic, social and environmental considerations as set out in s.1B of the EP Act.
As a starting point if an application can meet with the requirements of the Septic Tank Code of Practice to contain all wastewater on site such that it cannot be detected beyond the boundary then we consider this to be an appropriate basis for the assessment of risks. Such an assessment requires consideration of the appropriate factors (e.g. physical and chemical soil conditions, capacity for dispersal of wastewater, climatic factors etc) as well as the nature of the system to be used and its capacity to treat water to an appropriate level. A rigorous application of this approach should provide the appropriate levels of safety consistent with the expectations of the precautionary principle. [My underlining]

107 It is not for this Court to decide what in a particular case is a satisfactory evidentiary basis for the evaluation of risk to potable water quality. It is, however, the role of this Court to ensure that the decision maker adverts to factors which the planning framework clearly designates as relevant. The above statements postulate a generally acceptable basis for the assessment of risk, which does not recognise that both the Guidelines and the planning scheme provisions make clear that the cumulative risk of adverse impact to water quality resulting from successive residential developments, is a discretely relevant consideration when permits are sought for increased densities of septic tank facilities within a potable water supply catchment.

108 The statements made by the Tribunal in the paragraphs last quoted above confirm the view that in the present case the Tribunal did not recognise the true nature of the precautionary principle, nor did it apply it to a significant factor recognised by both the Guidelines and the planning scheme.

109 The Tribunal has arrived at certainty without first considering properly or at all the doubts[29] necessarily raised by the provisions of the Guidelines and the planning scheme, whether despite the provision of a land capability assessment, septic tank system compliant with the Code and set backs exceeding those envisaged by the Code, the proposed dwellings will give rise to an unacceptable cumulative risk of pollution of potable waters.

110 In submissions to this Court, counsel for the owner relied on the following observations of McLauchlin QC DCJ in Theo v Caboolture Shire Council[30] concerning the application of the precautionary principle to an application for approval for the use of land for the purpose of a sterilisation and decontamination plant.

Essentially this principle calls for the avoidance of serious or irreversible environmental damage whenever practicable. The principle is concerned with environmental damage, not with danger to human life. Further, the principle is not concerned with bare possibilities of such damage, but with situations where such damage can reasonably be said to be threatened. This would, in my view, exclude situations where environmental damage was a theoretical but highly unlikely possibility. The section also calls for an assessment of "risk weighted consequences of various options" where appropriate. There are, as the evidence indicates, other processes which can be employed for sterilisation procedures, including steam, gas and electron beams. The evidence also indicates, however, that these methods are not effective or are far less efficient for the purpose of the sterilisation and de-contamination of packaged goods than gamma ray sterilisation. The evidence does not to my mind indicate a possibility of environmental damage arising out of the proposed operation of such a magnitude that it can be described as a threat. Of course there is always the possibility of catastrophic events against which human foreseeability cannot guard and there is also the possibility of human error in the management of dangerous substances. However the procedures which will be set in place seem to me, to reduce the latter possibility to a minimal risk. Also the possibility of escape of radiation from the plant by reason of natural disasters seems to me to be very remote. The standards of safety incorporated in the design of the plant are such that I do not think any reasonably foreseeable event would produce this result. Obviously such a result might occur if, for example, there were a completely unpredictable earthquake of enormous intensity affecting the Caboolture area, or perhaps, if the plant were to be struck by a meteor or some other object from space. I do not think however that application of the precautionary principle requires the respondent council or this Court to take into account possibilities of that sort. It seems to me, as a general proposition that environmental damage should not be seen as "threatened" unless it is reasonably foreseeable.

111 It was submitted that in the present case the Tribunal was to be understood as having found that there was no reasonably foreseeable risk of damage to the environment.

112 In my view, first, the Tribunal did not correctly identify or address the concept of risk of "serious" as distinct from irreversible damage to the environment.

113 Secondly, it did not assess the gravity of the risk against the relevant test but rather substituted a misconceived test requiring a risk of irreversible damage.

114 Thirdly, it did not in terms find that there was no foreseeable risk of damage to the environment.[31]

115 Fourthly, for the sake of completeness, I do not accept that the distinction between the risk of damage to the environment and danger to human life is readily applicable to the present context when the primary beneficial use of the waters in issue is that of potable water.

116 Accordingly, the appeal should be allowed and the matter remitted for further hearing in accordance with law before a differently constituted division of the Tribunal. In summary the Tribunal has misstated and misapplied the precautionary principle in circumstances where it was plainly relevant, because both the Guidelines and the planning scheme policy required the Tribunal to consider the question of the cumulative risk created by otherwise individually appropriate septic tank systems.

[2] The boundaries of the catchment are defined pursuant to s.5 of the Catchment and Land Protection Act 1994.

[3] Referred to before the Tribunal as the Interim Guidelines.

[5] Page 4 of Dr O'Connor's statement of evidence dated February 2007.

[7] See the definition of beneficial use in s.4 of the Environment Protection Act 1970.

[9] Melbourne Water v Baw Baw Shire Council & Ors VCAT 1998 Nos 34846, 38233, 38249 and 43152.

[10] Hobbs v Macedon Ranges [2000] VCAT 119 at 22-24; Cabbabe v Baw Baw Shire Council [2001] VCAT 747 at 21-23; Glenane v Moorabool Shire Council [2002] VCAT 115 at 67; Barton v Moorabool Shire Council [2003] VCAT 673 at 44.

[13] "The Interim Guideline is not a reference document in the Macedon Ranges Planning Scheme or other relevant acts or statutes." (Tribunal footnote).

[14] "We consider the failure to explain how a 1:40 ha density should be determined to be a flaw in these guidelines. While Mr Glossop and others have adopted a 1km radius around the location of a dwelling, we note that such an approach could easily include a dwelling up to a 1,000m from a waterway. We find that such an approach seems to be at odds with the Code of Practice, which highlights that a buffer distance of 100m is appropriate for potable water supply waterways. To extend the density calculation beyond this buffer seems to capture dwellings that, by import of the Code of Practice, are not considered to be presenting a risk." (Tribunal footnote).

2. The Tribunal erred in law by failing to attribute the Interim Guideline the status of a policy prepared under section 60(1)(b)(ii) (now section 60(1A)(g)) of the Planning and Environment Act 1987.

3. The Tribunal erred in its application of the Interim Guidelines by:

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