The decision of the Responsible Authority to amend Permit P203-0197 in accordance with the Notice of Decision to Amend a Planning Permit issued on 20 February 2007 is affirmed. The Responsible Authority is directed to issue the amended permit.

(given orally at the hearing and subsequently revised)

1. Mr Willmott operates a small spring water bottling plant at the subject site. He sought an amendment to his existing permit that allows this use so that he could increase the number of truck trips to his site from two to four. The Macedon Ranges Shire Council (the Council) also sought to amend the descriptor of land use allowed under this permit for consistency with the planning scheme and revised zoning of the land since the issue of the original permit. The applicant for review, Mr Bennet, challenged the amendments proposed on the grounds that:
   • the extraction of the groundwater for commercial purposes is not a sustainable use of the natural resource; and
   • the proposed amendments to the land use descriptor changes the use of the site to one that is not appropriate under the zoning of the site.
2. Mr Willmott currently operates his spring water bottling plant under the conditions of a permit issued on 11 May 2004. He sought to amend Condition 3 of this permit:
   • Subject to Condition 2 above the number of truck movements in and out of the site associated with the use hereby approved must be limited to a maximum of two in each direction per day.

so that the number of truck movements can be increased to a maximum of four in each direction per day.

1. The permit also contains Condition 4, which states:
   • Notwithstanding any current or future licensing arrangements under the Water Act no more than six megalitres (ML) of water to be bottled may be extracted on the site per year, except with the prior written consent of the Responsible Authority.
2. Mr Willmott is not seeking to change this condition.
3. At the time of issue of the permit in 2004, the land fell within the Rural Use Zone. The taking and bottling of water was deemed by the Council to be an inominate use neither being a Section 1 nor Section 3 use under this zone. Accordingly, a permit was required and was issued for this use. There was one objection to this permit but no appeal.
4. In assessing the amendment application for this permit, the Council noted that the zoning of the property has changed to the new Farming Zone[1]. Under the provisions of the Farming Zone[2], an inominate use is prohibited. Mr McIlrath submitted that the permit and the use could have continued under the existing wording subject to the provisions of Clause 63 (Existing Uses) of the Macedon Ranges Planning Scheme. It was submitted that the Council took the opportunity in amending Condition 3 of the permit to also amend the permit preamble so that it would be clear that the use could continue under the new zoning and there would be no ambiguity. The proposed amendment to the planning permit put forward by Council is to amend the use of the land for from use [sic] land for at source bottling of spring water to use [sic] land for utility installation (at source bottling and bulk extraction of spring water). Use of the land for a utility under the Farming Zone is a Section 2, permit required use[3].
5. Mr Bennet contests the change in the preamble to the permit. He submits that this is an inappropriate definition of the land use. He contends that it is a commercial or industrial like land use that would not ordinarily be allowed under the Farming Zone.
6. Mr Bennet contends that an amendment to the permit allowing a utility use is in fact a change in the use of the site and therefore required full consideration of the applicable planning provisions, policies and overlays that this site is subject to. It followed from this line of argument that being a new use of the site and considering the various applicable planning provisions then one needed to consider the environmental impacts of the extraction of groundwater for the bottling purposes. In then supporting his objection, Mr Bennett submitted that the use of the groundwater is inappropriate for the commercial purpose as it has the potential to cause adverse impacts to this resource. He cited the instances of a number of other users of groundwater in the area and the possible impact to flow in a local waterway which feeds a local town reservoir.
7. Mr Bennett's grounds for objections are flawed for two reasons.
8. In respect to the permitting or licensing of groundwater extraction, such licensing is not one that falls within the ambit of discretion of the planning scheme provisions. It comes under the Water Act 1989 (the Water Act). While the planning provisions may call for consideration of impacts to groundwater from use or development proposals, this ambit of discretion does not extend to the licensing of groundwater use. The principals underlying the ambit of discretion have been enunciated in previous tribunal decisions[4].
9. Goulburn Murray Water is the delegated rural water authority with the responsibility for issuing groundwater extraction licences in this region. This authority has seen fit to issue a groundwater extraction licence to Mr Willmott for his operations. In issuing this licence, this water authority is bound[5] to consider, amongst others matters, those set out under and s.40(1) (b) to (m) of the Water Act which include:

(d) any adverse effect that the allocation or use of water under the entitlement is likely to have on -

(iv) the maintenance of the environmental water reserve in accordance with the environmental water reserve objective;

(g) the need to protect the environment, including the riverine and riparian environment;

(k) if appropriate, the proper management of the ... aquifer;

(l) the purposes for which the water is to be used;

No evidence was submitted at this hearing that this application had not been otherwise so considered by Goulburn Murray Water.

1. The facts of this matter are that Mr Willmott has a groundwater extraction licence issued some years ago to take and use groundwater for commercial purposes. This licence allows Mr Wilmot to take up to 34 megalitres (Ml) per year for such a use[6]. The conditions of the planning permit (pre and post amendment) limit extraction for the express commercial purpose of bottling to 6 Ml per year. While I may be sympathetic to the concerns expressed by Mr Bennett as to reports of depleting groundwater reserves over the recent dry period, this is a matter to pursue with Goulburn Murray Water and not through the planning approval process.
2. In response to Mr Bennett's submissions that the changing of the permit preamble to one of a utility use is inappropriate, I find that this not to be the case.
3. When one has regard to land use definitions as set out in clause 74 of the planning scheme the extraction, treatment and distribution of water, as occurs on this site is consistent with that of a utility installation. This use of this term at groundwater bottling plants was also applied in the matter of Learmonth Springs Pty Ltd v Yarra Ranges Shire Council 2002[7].
4. Mr Bennett suggests that the term 'utility installation' is one that would commonly be expected to be applied to public infrastructure such as electricity or sewage where as extraction of groundwater for sale is a commercial enterprise.
5. It is useful to refer to the definition of utility installation as found at clause 74, being land used:

c) to collect, treat, transmit, store, or distribute water; or

d) to collect, treat, or dispose of storm or flood water, sewage, or sullage.

1. No mention of the public or private benefit of these activities is set out in the definition. Indeed, commercial operators undertake some of these activities for profit based on public consumption, e.g. transmitting oil or gas. Further, because a land use may be of a commercial nature does not preclude it from the Farming Zone. In some ways a winery may be considered to have commercial like activities, but this is also a use allowed under the farming zone (subject to consideration of a range of matters).
2. I find that the use of the term 'utility installation' in this instance is appropriate within the existing land use definitions of the Planning Scheme and one that despite conveying a sense of non-rural activity, is permissible in the zone.
3. I also do not find that the material use of the land has changed simply because of the change in the wording of the preamble. I do accept that the amendment has included bulk water extraction. This was put by Mr McIlrath as being for bulk transportation of water from the site. It was not intended to allow a greater level of groundwater extraction than that previously or currently permitted nor change the underlying use[8].
4. I am satisfied that the use allowed by the amendment to the permit will continue to be the same as it was before the amendment, i.e. the bottling and distribution of groundwater extracted at the site.
5. While Mr Bennett contends that amending the permit preamble description of use is akin to a new permit application, I note that other than his objection on the grounds of inappropriate use of the groundwater resource (as discussed above) no other grounds relating to the actual operation of the site were raised. Even if I were to have regard to the submission that this is akin to a new permit, I do not find there is substantive reason to refuse the amended land use descriptor.
6. For these reasons, I dismissed the application for review of the amendment to the permit.

[1] The amendment was introduced on 19 January 2006.

[2] Clause 35.07-1 of the Macedon Ranges Planning Scheme.

[4] See for example Victorian National Parks Association v Iluka Resources Limited [2004] VCAT 20 and in relation to groundwater licensing Learmonth Springs Pty Ltd v Yarra Ranges SC [2002] VCAT 1043.

[5] As set under s.53 of the Water Act 1989.

[6] A further 2 Ml can be taken for domestic and stock purposes.

[7] [2002] VCAT 1043.

[8] In any event, Mr Wilmot noted that bulk transporting of water will require additional infrastructure not presently on the site. A permit may be required for the additional infrastructure being development and works of a section 2 use under the Farming Zone and subject to the matters set out under clause 35.07-4.