Before the commencement of buildings and works approved by this permit:

(a) a soil validation test must take place during excavation and prior to construction by a suitably qualified person of any exposed soil. The results of the soil testing must be forwarded to the responsible authority. If the soil test confirms the soil is unreasonably contaminated for the proposed residential use then either:

(i) a Certificate of Environmental Audit indicating the land is suitable for residential use must be issued for the land in accordance with Section 53Y of the Environment Protection Act 1970; or

(ii) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of the Act that the environmental conditions of the land are suitable for proposed uses. Any conditions in the Statement must be complied with.

A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.

The Responsible Authority is directed to issue a modified permit in accordance with this order.

Deletion of condition 5 Permit PL06/0942 which requires either a Certificate or a Statement of Environmental Audit pursuant to the Environment Protection Act 1970

Section 77 Planning and Environment Act 1987

Heritage Overlay (334 - South Fitzroy Precinct) (cl 43.01)

Norman & Tinney v Yarra CC [2008] VCAT 309; Yang Kuan Pty Ltd v Boroondara CC [2008] VCAT 2524

1. The Responsible Authority refused an application on 23 September 2008 to delete condition 5 in Permit PL06/0942. Condition 5 provides:

Before the commencement of buildings and works either:

(a) a Certificate of Environmental Audit indicating the land is suitable for residential use must be issued for the land in accordance with Section 53Y of the Environment Protection Act 1970; or

(b) an environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 53ZS of the Act that the environmental conditions of the land are suitable for proposed uses. Any conditions in the Statement must be complied with.

A copy of the certificate of environmental audit and/or statement, and the complete audit report and audit area plan must be submitted to the Responsible Authority.

1. The land the subject of Permit PL06/0942 is located on the southern side of Argyle Street Fitzroy, it is contained in Certificate of Title Volume 03770 Folio 826 and is otherwise known as 36-38 Argyle Street. The land contains two late 1800 Victorian double storey terrace buildings built to the boundary, currently used for office and residential purposes. The buildings have a frontage to Argyle Street to the north and a right of way extends along the rear to the south. Access to the building is via a 3m wide crossover adjacent to the western boundary in Argyle Street.
2. The permit issued on 17 September 2007 allows for part demolition and buildings and works associated with the conversion of the existing building into two dwellings and use of the ground floor at 38 Argyle Street as an office with a waiver of the associated car parking requirement.
3. The existing buildings cover the entire site and have a concrete slab throughout. The scope of the buildings and works permitted by the permit are restricted to the reconstruction of the façade to 36 Argyle Street in its original location. This will require a section of the slab to be removed to allow either the original footing to be exposed or a new footing poured. The works are to be carried out in an area of approximately 3.5m x 1m and will result in the removal of a roller door to a garage and the setting back of the front façade in this area 1m to its original location, as well as the incorporation in this new façade of a new entry doorway and window. The slab will then be reinstated.
4. The applicant submits the condition is onerous and unnecessary. The cost of the works allowed under the permit is it was submitted in the order of $10,000. The cost of an Environmental Audit in terms of the proposed building works is said to be prohibitive.
5. The applicant submitted the site is located in an Environmental Audit Overlay as a result of a blanket rezoning of a large area of Fitzroy from Industrial to Mixed Use, which has been imposed regardless of the original use of the land. It was submitted there is no evidence the site has been used for any purpose which would give rise to contamination. The land having been predominantly used for residential purposes and as the former Union Hotel c. 1880 - 1890. Further it was submitted there are no contaminated sites within close proximity to the site. Statements of Environmental Audit for the site immediately to the west and 40m to the north east both described those sites as clear of contamination with the site to the west indicating it was unlikely any leaching of contaminants had occurred from the site.
6. As part of the background information provided by the applicant it was submitted that at sometime between 1960 and 1978 the entire site behind the original buildings was developed. This is not in the location of the proposed works. At this time a new roof was erected and a concrete slab poured over the balance of the site, a slab having been poured replacing the timber floor to the Argyle Street dwellings at some time earlier. Therefore, as a result of the works completed prior to 1978 there is no access available to the underlying soil on the site.
7. The Responsible Authority indicated that prior to the coming into force of the current planning scheme (27 May 1999) the site was located within the 'General Industrial Zone'. Under this zoning land uses such as 'Light Industry', General Industry' and 'Motor Vehicle Repairs' were 'as of right'. Most residences along the relevant 'section of Argyle Street' were 'metal engineers and body works repair places'. Rate records indicate the site was used as a factory for a period between the late 1970s to early 1990s following a conversion from three dwellings. More recently the land has been used for residential and office purposes.
8. The Environmental Audit Overlay is recognised as a mechanism provided within planning schemes to ensure that land used or known to have been used for industry, mining or the storage of chemicals, gas, wastes or liquid fuel is suitable to be used for sensitive uses defined as residential, public open space, agriculture, a child care centre or a primary school. Ministerial Direction No 1, referred to in clause 15.06 of the State Planning Policy Framework requires a responsible authority in such circumstances to satisfy itself that environmental conditions of potentially contaminated land are or will be suitable for the sensitive use.
9. An Environmental Audit is required to be conducted by an environmental auditor appointed under the Environment Protection Act 1970 to independently assess the condition of a site and form an opinion about its suitability for the proposed use. To form such an opinion the auditor must gather and review sufficient information including site history information and the results of sampling and analysis of soil and possibly groundwater, surface water and air[1].
10. Reference was made to several cases in which the Tribunal has considered the relevance or otherwise of a condition such as condition 5 in a variety of circumstances[2]. In Norman & Tinney the same Responsible Authority as in this case 'acknowledged that the Environmental Audit Overlay had been imposed over a relatively large section of Fitzroy'. This may be so but historically the land was zoned for industrial purposes and whilst it appears that for the majority of the time since the buildings were erected on the site in the 1800s, they have been used for residential purposes, there is a period when the site was used for a factory, although it is not clear what this involved. The information provided by the applicant does suggest that at the time the site was used as a factory the total site was covered and no soil was exposed. This is considered to be of some relevance.
11. The underlying purpose of the Ministers Direction No 1 and the Environmental Audit Overlay is to ensure that any likely contaminated land that is to be used for a sensitive use is assessed and the risk from the contamination to those sensitive uses removed.
12. In the circumstances of this case the land has been entirely covered with buildings for a considerable period of time and there has been no opportunity for anyone to be exposed to soil on the site. The land has been used for a considerable time, although maybe not always, for residential purposes. The works to be carried out are minor in nature and whilst they do require removal of a portion of the concrete slab to allow for footings, once the works are carried out the concrete slab is to be replaced. There will therefore be no ongoing exposure to soil on the land. Any exposure to the soil will only be to the persons carrying out the works who are covered by Occupational, Health and Safety Regulations and not to persons residing on the land. Whilst the Statements of Audit for the nearby properties are relevant to those properties they are not conclusive that there is no contamination on the subject land.
13. On the basis of the above I consider that the works are of a minor nature and will not result in any on going exposure to any soil on the land and in such circumstances the condition is onerous and unnecessary and should be removed.
14. It was submitted and highlighted in Yang Kuan Pty Ltd that even if condition 5 is removed there is still a requirement for either a certificate or statement under the provisions of the Environmental Audit Overlay at clause 45.03-1 and the removal of the condition does not remove the requirement. Clause 45.03-1 certainly specifies that it is a 'requirement' that before the construction or carrying out of buildings and works in association with a sensitive use commences, either a certificate or statement is provided. In such circumstances it is considered appropriate to highlight this requirement by way of a condition or as suggested in Yang Kuan Pty Ltd it could be by way of a note on the permit to bring this to the attention of the owner or developer of the land.
15. The requirement imposed by way of the Environmental Audit Overlay in the circumstances of this case appears to impose a particularly onerous requirement that appears to outweigh the limited works to be carried out on the land. Given that removal of the condition will not remove the requirement in clause 45.03-1 it is considered that the condition should be amended to add an additional layer that would require when the soil is exposed a soil test, if found to contain unreasonable contaminants in relation to the proposed residential use then either of the existing provisions of condition 5 should be addressed. Such a soil test is unlikely to be as costly as engaging an environmental auditor. If the Responsible Authority continues to insist that either a statement or certificate is required, even if the soil tests show there are no unreasonable contaminants, then it may be a declaration would be required.
16. Condition 5 is retained but with modifications.

[1] Potentially Contaminated Land - General Practice Note - June 2005 - Department of Sustainability and Environment

[2] Norman & Tinney v Yarra CC [2008] VCAT 309; Yang Kuan Pty Ltd v Boroondara CC [2008] VCAT 2524