The applicant submits that at the time the application was lodged with the Council the subject land did not fall within the outer advisory area based on the Council's interim guidelines then dated 7 July 2014. This, it was submitted, is what should apply to the application.
The Tribunal must decide the application on the relevant provisions at the time of hearing and not necessarily what was applicable at the time the application was made[2].
Although a permit may be granted this does not imply that a permit should or will be granted. The Responsible Authority and in turn the Tribunal must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65.
[2]
Mr Lachlan Dreher, a chemical engineer specialising in process safety and risk management, including the management of major hazards gave evidence that 'the refinery stores, handles and processes large quantities of flammable materials and is classified as a MHF due to the presence of these materials'. Potential major incidents from such facilities include fires and/or explosions resulting from uncontrolled releases of flammable liquid or gases. There is also the potential for toxic vapour releases associated with uncontrolled releases of toxic liquid or gases.
Potential off-site impacts as a result of any of the above incidents is likely to have an effect on nearby buildings and residents, which could lead to health impacts and public disruption. Although Mr Dreher considered the possibility of such incidents occurring to be low there was still a potential risk.
Mr Andrew Jeffrey Williamson, Safety, Security, Health and Environment Manager for Mobil stated 'Mobil's operations have local, State and national significance. The refinery complex provides direct employment for around 350 people. The Refinery supplies around half of Victoria's fuel needs and is a major contributor to the Victorian economy with production valued at around $4 billion per annum. Mobil operates several bulk fuel distribution terminals in Australia including Yarraville Terminal, which is Victoria's largest bulk fuel distribution terminal, Birkenhead Terminal in South Australia and Silverwater Terminal in New South Wales'.
It was Mr Williamson's evidence that an increase in residents in close proximity to the refinery could potentially lead to the refinery being unable to react to changing market dynamics and provide flexibility to maintaining a viable refinery.
Mr Robert Milner, Town Planner considered it would be inappropriate to grant a permit for an additional dwelling having regard to the WorkSafe and Council's Interim guidelines. Given the latent potential for environmental impacts and health and safety concerns there should be no further intensification of the residential area.
[3]
The Tribunal as well as the Council have already dealt with a number of applications relating to proposed residential development within close proximity to a MHF.
Mr Willis referred to a number of Council decisions relating to residential development within the immediate neighbourhood to the subject land. In each case the Council had refused a permit (or extension of a permit) based on the ground that the proposals fell within relevant buffer distances to a MHF referred to in Council's interim guidelines[3].
In JB & DP Milgate Pty Ltd v Hobsons Bay CC[4] the Tribunal refused to extend the time for the commencement of a permit due to the proximity of the subject land to the Altona Refinery.
[4]
I am satisfied from this review of the Council's application of the advisory areas that the subject land lies within the processing unit inner advisory area. That said, even if it were to fall within the outer advisory area, this would still be an area where WorkSafe would caution against residential development. It is also apparent that even if the tank advisory area were to apply, the land would sit just within that applicable inner advisory area.
[5]
The Applicant submits that the incremental increase in risks is really no greater than those posed on surrounding residences or for that instance a single large dwelling that might be built as of right on this residentially zoned land. I do not accept such submissions. As observed in the reasons of the Tribunals in the Shell and VJA Consultants proceedings, the fact that residential areas are located so close to these major hazards facilities is a legacy of past planning decisions made under different regimes of risk acceptance and societal expectations.
[6]
Current planning policy acknowledges the problems of locating incompatible land uses close to each other. Policy seeks to protect residential amenity and public safety while at the same time protecting industries from encroachment of such sensitive uses.
[7]
The Tribunal in Shell Company of Australia v Hobsons Bay CC & Ors andVJA Consultants Pty Ltd v Hobsons Bay CC & Ors[5] concluded there is 'little justification for perpetuating or intensifying the exposure of people to risk of harm'.
I agree with the comments highlighted in the above Tribunal decisions.
[8]
I concur with the evidence presented and with the previous Tribunal decision referred to above that although it may be said there is a low risk of an event occurring, allowing even incremental increases in residential density in such close proximity to a MHF is not acceptable and does not lead to a good planning outcome.
For the above reasons the decision of the responsible authority will be affirmed. No permit is to issue
[9]
[1] I have considered all submissions and Statements of Grounds lodged with the Tribunal although I do not recite all of the contents in these reasons.