Victorian Civil and Administrative Tribunal|2024-03-06

The applicant expressed concern over the nature of the businesses operating from the site. I am not concerned. The use of the site is a dental laboratory. The permit granted relates to this use. The respondent (permit applicant) will be responsible for ensuring the conditions of the permit are adhered to and the conditions can be enforced if and as required.
For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to amended conditions.

Use of the land in the Commercial 1 Zone for industry (dental laboratory)

Within four (4) months of the grant of this permit, amended plans must be approved and endorsed by the responsible authority. The plans must:

(a) be prepared to the satisfaction of the responsible authority;

(b) be drawn to scale with dimensions and submitted in electronic form; and

(c) be generally in accordance with the plans forming part of the application, but modified to show the following details:

Retro-fitting of the layout of the dental laboratory to accord with any recommendations from a noise assessment report and workplace safety report.

Management of odours and fumes from any curing furnaces including flued and ventilation arrangements to ensure they are emitted in a controlled manner in accordance with any recommendations of a workplace safety report.

Management of use of crystalline silica powders in a controlled and sealed environment in accordance with any recommendations of a workplace safety report. Alternatively, evidence that crystalline silica powder is not to be used and replaced by an alternative safe material.

Movement of machinery that may emit noise and vibrations away from the common wall with the tutorial education centre.

Sealing of the space occupied by the dental laboratory including any doors that connect to the adjoining tutorial education centre.

The use and layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the responsible authority.

Within three (3) months of the grant of this permit, the applicant/owner must submit a noise assessment report to the responsible authority prepared by a suitably qualified and experienced acoustic engineering consultant which is to provide recommendations for noise and vibration management works to ensure that noise and vibration from activities conducted by the dental laboratory complies with Condition 12.
Any works required from Condition 1 and recommended in the noise assessment report are to be implemented by the permit applicant immediately and no later than six (6) months from the grant of this permit to the satisfaction of the responsible authority.

Within three (3) months of the grant of this permit, the applicant/owner must submit a workplace safety report to the responsible authority prepared by a qualified and experienced occupational and workplace safety consultant which is to provide recommendations for managing furnace emissions and dust emissions from the use of crystalline silica powder or alternative substances as part of the dental laboratory operations. Adequate ventilation and capture and controlled management of any air and dust emissions must be addressed to the satisfaction of the responsible authority.
Any works required from Condition 1 and recommended in the workplace safety report are to be implemented by the permit applicant immediately and no later than six (6) months from the grant of this permit to the satisfaction of the responsible authority.

The amenity of the area must not be adversely affected by the use and development as a result of the:

(a) Transport of materials, goods or commodities to or from the land; and/or

(b) Appearance of any building, works, stored goods or materials; and/or

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, ash, dust, waste water, waste products, grit or oil; and/or

(d) The presence of vermin.

or in any other way, to the satisfaction of the responsible authority.

The number of staff, proprietors, and person related to the proprietors working on the site or any other persons working on the site, whether paid or unpaid, must not exceed ten (10) on the site at any one time.

The use allowed under this permit must operate only during the following hours, except with the prior written consent of the responsible authority:

Monday to Friday (except Public Holidays) - 8AM - 6PM.

The dental laboratory use must not have direct dealings with the public.

The use allowed under this permit must operate with the provision of four (4) on site car parking spaces to be provided to staff, to the satisfaction of the responsible authority.

Noise levels emanating from the premises must not exceed the relevant levels prescribed by the State Environment Protection Policy (Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues - Publication 1826.4) or any successive relevant legislation, to the satisfaction of the responsible authority.

The number of denture moulds will be limited to six (6) per day (3 per person) to reduce respirable crystalline silica exposure except with the written consent of the responsible authority.
The use of compressed air to blow down denture moulds in the general laboratory environment is to be discontinued or substituted with a method that does not involve the use of compressed air or, if this is impracticable, that any blow-down of denture moulds must take place in one of the enclosed and extracted glove boxes.

Within six (6) months of the grant of this permit, the permit applicant must retrofit the air conditioning system for the dental laboratory so that it operates as a self-contained system with no connection of air movement from the dental laboratory to other occupancies within the building to the satisfaction of the responsible authority.
The use of the rear balcony or rear doorway/passageway for the operation of machinery including any furnaces and for the mixing of denture moulds must not occur and is prohibited. Such equipment must be flued or directly ventilated in a controlled manner to the satisfaction of the responsible authority.

This permit as it relates to use will expire if the use does not commence within two (2) years after the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

[1] The submissions 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] Refer to Clauses 02.03-1, 11.03-1S, 11.03-1R and 11.03-1L-04.

[4] See for example, Knox City Council v Tulcany Pty Ltd [2004] VSC 375 at paragraph 13 and following the findings of Van Egmond v City of Knox, Bassett & Ors as cited in Tulcany with reference to (1985) 3 PABR 249 at 250.

[5] See for example Malone v Bass Coast SC [2008] VCAT 1442 at 42 & 43.

[6] Advice dated 14 December 2023 from Mr John Rantino, Special Counsel from Maddocks Lawyers.

[7] The EPS inspection was conducted on 31 July 2023. The WorkSafe Victoria inspections were conducted on 25 July 2023, 31 August 2023 and 24 October 2023.

[8] [2013] VCAT 101 ('Mount Alexander').

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Bottomley v Boroondara CC [2024] VCAT 200 (6 March 2024)

The purposes of the C1Z includes to create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses. A dental laboratory either as an innominate use or under the definition of industry is a permit-required use. Clause 34.01-2 relating to the 'Use of land' requires that a use must not detrimentally affect the amenity of the neighbourhood, including through emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater, waste products, grit or oil.
The applicant claims the dental laboratory produces noise, odours and dust that is detrimental to health, safety and amenity and is not a fit for purpose activity in a commercial setting and within an office type building. The applicant says the presence of a furnace, a dental milling machine, 3D dental milling printer, model trimmer, curing machine, sand blaster, thermoforming machine and other various motorised hand tools generates high heat, dust, noise, and odours. She says this equipment and manufacturing processes for dentures set within a confined office-based environment with shared amenities, insufficient ventilation and thin partitioned walls to the tutorial education centre is not appropriate.
In particular, the applicant is concerned that crystalline silica is being used as part of the denture manufacturing activity and acutely concerned regarding the health risk associated with silicosis which is a dangerous risk for respiratory and lung health.
The applicant believes her health has been impacted from the operation of the dental laboratory through the grinding, blasting, drilling associated with making dentures. The applicant says the malfunctioning of equipment causes odours and fumes that require doors to be opened and that dangerous dust emissions circulate within the interconnected air conditioning systems affecting her premises next door.
Council says any impacts on amenity needs to be considered in the context that the site is a commercial building located within a commercial setting and that the expectations for amenity to be protected needs to be commensurate with such a context. Council says the site is not residential in character and has a commercial interface with less amenity.
I accept that in a commercial context, expectations for amenity protection may not be as high as if the site was in a residential setting. However, the adjacent use is that of an education centre where tutorial classes are conducted, and this type of land use has a level of sensitivity where expectations for protection of amenity may be expected to be higher.
I note the site has been inspected on three occasions by WorkSafe Victoria ('WorkSafe') and once by the EPA.[7] At none of these inspections has the dental laboratory been requested to close or been found to seriously breach health and safety regulations or the Environment Protection Act 2021 (Vic).
The EPA inspection identified an odour but advised it was not strong. Machinery was observed to be loud in tone with a constant vibration and it was suggested to be mitigated by moving loud machinery, including those which cause vibration away from walls and vents to reduce noise travelling from the premises and to install vibration minimising mats or similar materials to reduce noise emissions and absorb the vibrations from machinery. The EPA inspector also suggested a noise assessment be conducted to appropriately reduce noise emissions.
The WorkSafe Victoria reports identified various issues relating to first aid, safety data sheets, hazardous substances register and controls, and workplace occupational health and safety associated with dust control. These issues were subsequently found in later inspections to be complying.
I note that the WorkSafe Victoria inspections were conducted in response to complaints concerning constant noise, toxic fumes being emitted by the dental laboratory and the air conditioning unit circulating fumes to other businesses. The WorkSafe Victoria report dated 25 July 2023 identified the following outcomes:
- Regarding noise, a range of electrical equipment for the manufacture of dental devices including benchtop 3D printers, benchtop sandblasters, air compressors and milling machines were observed in operation and that a conversation was able to be held without needing to raise voices to be heard at a distance of 1 metre.
- Regarding toxic fumes, it was observed that minor quantities of hazardous substances and dangerous goods are stored and handled in the workplace and that a 'Heating, Ventilation and Air Conditioning System' ('HVAC') is installed in the building and was operating. Noxious fumes were not able to be detected emanating from the activities being undertaken in the workplace.
- Regarding air conditioning and circulation of fumes, the HVAC system was observed to have zoned temperature control that could be adjusted using a thermostat controller located in the manufacturing area and that supply and return air ducts were located in various rooms throughout the office.
- The outcome of the inspection was that the allegations raised in the occupational health and safety concern could not be substantiated and that further inspections would be conducted in relation to occupational health and safety risk controls.
WorkSafe Victoria conducted a further inspection and report dated 31 August 2023 which identified activity associated with crystalline silica powder. Staff were seen to wear protective face masks and polishing and grinding of dentures were conducted using a self-contained 'Local Exhaust Ventilation' ('LEV') system. The report identified issues with information, instruction and training for staff and provision of information for job applicants regarding the dangers associated with the use of crystalline silica products. I note the follow up inspection by WorkSafe Victoria on 24 October 2023 identified that these failings had been addressed.
I note that none of the issues identified by WorkSafe Victoria concerned significant off-site impacts from the dental laboratory.
The respondent also tabled a report prepared by Amcosh Pty Ltd dated September 2023 where respirable dust and crystalline silica exposure and paraffin wax fumes were monitored and measured against exposure standards set by SafeWork Australia.
The results showed that respirable crystalline silica dust levels in the dental laboratory were 50 % below the 8-hour time-weighted average standard of 0.05 mg/m3 and well below the similar time weighted standard of 2 mg/m3 for paraffin wax fumes at 6% of the exposure standard.
The Amcosh Pty Ltd report concludes that there is a low risk of exposure of dental laboratory technicians to excessive levels of crystalline silica. It was noted that the dental laboratory, as an additional margin of safety will limit the number of denture moulds processed in the laboratory to a total of 6 per day (3 per person). I understand this will significantly further reduce the level of any exposure. The Amcosh Pty Ltd report observed that compressed air is used to blow down the mould in the general laboratory environment, which has the potential of creating airborne respirable dust. It was recommended that this process either be eliminated or substituted with a method that does not involve the use of compressed air or, if this is impracticable, that any blow-down of the moulds take place in one of the enclosed and extracted glove boxes. I will include conditions to address these issues.
Regarding the paraffin wax fumes, I understand that the total inhalable particulate concentration in the vicinity of the furnace used to burn off the wax moulds was well below the relevant standard indicating a negligible risk of exposure to fumes and should not cause irritation of the respiratory tract, nausea nor objectionable odour.
Council and the respondent were critical of the applicant making assertions regarding the amenity and health impacts perceived from the dental laboratory with no evidence produced to quantify the extent of impacts.
In this regard, it is perhaps prudent that I refer to the Tribunal case of B & J McLeod Holdings Pty Ltd v Moyne SC [2023] VCAT 612 where Senior Member Potts refers to the position of the Tribunal in review matters and the boundaries within which disputes are determined:
1. In Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation & Ors (Mount Alexander)[8], DP Dwyer addressed the nature of review proceedings and the role of a tribunal. [9] Relevant to this proceeding is DP Dwyer's highlighting that in a de novo hearing the task of the Tribunal is one of:[10]

Bottomley v Boroondara CC [2024] VCAT 200

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Judgment (27 paragraphs)

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Legislation Cited (4)

Cases Cited (2)

Bottomley v Boroondara CC [2024] VCAT 200 (6 March 2024)