Archibald v Moorabool SC [2010] VCAT 163

The Applicant relied on the land capability assessment of Mr Williams. In his review of buffer distances, Mr Williams interpreted the EPA Code of Practice - Onsite Wastewater Management buffer requirement of 100 metres to a waterway and 60 metres to a dam as being the horizontal length of the surface flow path from the disposal area. We interpret the Code to require the horizontal distance in all directions from the boundary of the disposal area. Mr Bowman provided photographs of a dam on his property which is approximately 30 metres from the boundary of the proposed disposal area. This was confirmed during our site visit. We also noted the second dam on Mr Bowman's property as well as the location of the existing waterway and dams on the review site. These later water bodies all appear to be within or close to 100 metres from the proposed disposal area.
The Land Capability Assessment provided for the Applicant requires the use of a treatment that is subject to a detailed management and maintenance regime. It includes requirements for a management plan; annual inspections; testing and reporting; remote monitoring and alarms; surface and subsurface cut-off drains; fencing of the disposal area; sequential zoned irrigation; pressure control of the irrigation system; gypsum soil conditioning; monitoring and flow balancing storage; the maintenance of buffer planting down slope of the disposal area; restriction of traffic on the buffer area; and ongoing maintenance requirements. We find the treatment and disposal system requirements to be very complex. We consider there to be a consequential likelihood that it may not be satisfactorily maintained to ensure compliance of all aspects.

Before proceeding to discuss whether the proposal will present an unacceptable risk to the quality of the water harvested from this catchment, we will comment briefly on the relevance of the site's location within the Rural Living Zone.
As the name suggests, one of the purposes of the Rural Living Zone is to provide for residential use in a rural environment. Of itself, this may create expectations that land in the zone should be able to be developed and used for residential purposes.
Residential use in the zone, however, is not unconditional. The zone provisions nominate a minimum site area of 6 hectares for a dwelling. Where this minimum site area is not met, a permit is required for the use. In addition, regardless whether the use is subject to a permit or not, mandatory requirements relating to access, sewerage, water supply and power supply must be met if land is to be used for a dwelling.
These requirements must act to temper any expectations held in respect of a site's suitability for residential use. This is particularly so if the land is subject to additional constraints - such as the location within a potable water catchment. In the case of the review site, this constraint is reflected in the additional layer of control imposed by the application of the Environmental Significance Overlay. In such instances, where there is a discretion to be exercised, we find that precedence must be given to the policy of protecting water quality.
We consider that, against the background of the relevant policies, and the findings of the Tribunal in Rozen in respect of the application of the precautionary principle and the development of land within open catchments, the existing density, already significantly higher than the maximum density nominated in the Guidelines, should not be increased. To do so, in our view, would present an unacceptable risk to water quality within the catchment.
We have concluded that the application of the precautionary principle compels us to affirm the Council's decision and refuse a permit. As stated earlier in these reasons, we agree with the Tribunal in Rozen that every time a dwelling is allowed within a water catchment, the risk of contamination is increased. Even though the risk from any individual dwelling may be considered to be relatively low, when this risk is added to the risk associated with existing dwellings, it increases the potential of contamination. As noted at the hearing, in this instance there are two dwellings currently in the vicinity which drain into the waterway below the proposed dwelling. In addition, the waterway subsequently passes through the Lal Lal township which is also unsewered. We are concerned that the provision of another dwelling could increase the risk of pollutant accumulation and transport downstream.
The risk associated with the proposed dwelling cannot be considered to be low, for two main reasons. Firstly, the dwelling density in the area is already at least twice that nominated in the Guidelines. This, of itself is sufficient to confirm that great caution needs to be exercised in determining whether approval should be granted. Secondly, we find that the proposed wastewater treatment and disposal system is complex with a demanding maintenance regime that, in our view, places the system at an unacceptably high probability of failure or malfunction. Under the Water Catchment Protection Policy, the practicability of the management system is a decision guideline.
In combination, these two factors alone justify refusal of the proposal. We find that the development will pose an unacceptable risk to the water quality within the catchment. We will affirm the decision of the Responsible Authority and direct that no permit be issued.

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (2)

Archibald v Moorabool SC [2010] VCAT 163 (8 February 2010)