Dr R. J Sadler instructed by Cahills (Barristers & Solicitors). Dr Sadler called as expert witness Mr John Lawry a wastewater consultant.

Mr A Sherman, solicitor of Russell Kennedy Solicitors. He called as expert witness Dr Robert Van de Graff, a wastewater consultant and soil scientist.

1. Those who have visited the area of Cape Bridgewater tell me that this is one of Victoria's most scenic locations. Perhaps it is not surprising then that Gerret and Katrin Springer made a permit application to construct a dwelling on their property when it overlooks the sweeping expanse of the Cape Bridgwater coastline. In doing so, they made a concurrent application to install a septic tank system for on-site treatment and disposal of wastewater.
2. The Glenelg Shire Council (the Council) assessed the application for the septic tank and determined that:

The site proposed for the waste water system is unsuitable,

The area available for the treatment or disposal of effluent is not sufficient,

The development proposal is contrary to the State Environmental Protection Policies (Waters of Victoria and Ground Waters of Victoria).

The application failed to justify why Council should provide an exemption from the size of the adsorption fields and setback distances specified in Appendix 1 and Appendix 2 of the Glenelg Shire's waste water application guidelines.

1. The planning application for the dwelling was then refused by Glenelg Shire Council's on the grounds that:

The dwelling cannot be connected to a reticulated sewerage system and waste water cannot be satisfactorily treated and retained on-site in accordance with the State Environmental Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

As a result the proposed Dwelling use cannot meet the requirements of Clause 35.06-2 and is prohibited.

1. At the commencement of the hearing, I was advised that the parties had been in negotiation and the matters to be contested were, if not fully resolved, being reduced to one or two points of difference. I granted a short adjournment for the parties to continue these negotiations. When the hearing resumed I was informed that the matter had been resolved save for the points of difference set out in these reasons.

1. The basis for the negotiations was a series of alternative wastewater treatment options put forward by EWS Environmental dated 9 July 2007. These were circulated as amended plans in accordance with the Tribunal's practice note.
2. The details of all but one these options are no longer relevant to this decision. Option 2 (as per the circulated alternative options dated 9 July 2007) designated as the Wastewater Alternative Option, proposed black water to be collected and treated initially in a commercially available system noted on the plan as Biolytix CA 90/04 with either chlorination or UV disinfection. The treated water was to then pass through a sealed reed bed system before disposal via a primary or secondary disposal field. Under this proposal, grey water was proposed to be treated by a similar Biolytix CA 90/04 system with disinfection and re-used in the dwelling for non-potable uses.
3. Except for the matters under contention at the resumption of the hearing, the parties informed me that they had agreed to a modified form of this option and requested the application plans be amended on the basis of Option 2 with conditions to issue requiring their amendment. I have so ordered this amendment.

1. The subject land has an area of 693 sqm.[1] It is located on steeply sloping land. Site plans indicate a fall from north-west to south-east of approximately 11-12m (i.e. falling from a relative level of close to 29m to around 17m). Flatter grades occur in the north-west of the lot and steeper grades to the south-east, facing Bridgewater Road and the coast.
2. The lot is located in the coastal settlement of Cape Bridgewater. It lies between Bridgewater Road and Flinders Street, with access from the latter. The coastline lies some 50m to the south-east of the site.
3. Despite its zoning (addressed below), the lot is located in a residentially developed area, with surrounding land being subdivided into similar sized lots and developed with dwellings, such as the land to the immediate north-east. Two lots to the south-east remain vacant, but other dwellings are present further to the south-east.
4. The sloping nature of the block, combined with highly permeable soils and shallow rock result in this lot having a land capability rating of '5' in accord with the EPA assessment criteria.[2] This is the lowest rating that can be achieved and is taken to indicate that the site has a poor capacity to manage wastewater onsite and presents a very high environmental risk.

1. The proposal is to develop a four bedroom house on the site. The design details of this dwelling are not materially relevant to the issues to hand, other than the four bedrooms require an allowance for a certain level of wastewater generation.[3] Relevant to the matter is the reliance of the dwelling on a septic tank system to treat and dispose of this household wastewater (both grey and black waters).[4] Under normal circumstances the number of bedrooms would result in an estimate of daily wastewater generation being around 1,200L/day although there was some argument put by Council that it could be higher with extra people staying in the dwelling when on holidays.[5] In turn the Springer's have indicated that they believe they can achieve a lower daily flow due to water saving devices in the dwelling. All parties agreed to a permit condition limiting the daily flow to an average of 1,200 L/day over any 14 day period.
2. The amended septic tank system set out and agreed to by the parties is a modification of that circulated for the amendment to the application. The system is to comprise of an aerated wastewater treatment system (Biolytix BF6 - EPA CA 90/04 nominated) with secondary treatment by a reed bed system (a constructed wetland reed bed in accordance with EPA CA 033/92) treating all effluent from the dwelling. After the reed bed system, the treated wastewater is to discharge to a holding tank. The reed bed system is to be not less than 40 sqm in area and the holding tank is to be not less than10,000 Litres (10 Kl) capacity.
3. The system is to provide for the recirculation of wastewater from the holding tank to the reed bed. Mr Lawry anticipates that over summer the increased evapo-transpiration from the reed bed will assist in reducing the volume in storage. This operation will also correspond with the summer peak occupancy of the house. At other times (i.e. in winter when evapo-transpiration is low) or with peak loads, the holding tank will be pumped out and the treated wastewater transported to an off-site wastewater treatment plant.

1. The subject land is zoned Rural Conservation Zone Schedule 1(RCZ1) and is affected by a Schedule 1 of the Environmental Significance Overlay (ESO1).
2. Under the RCZ1, a permit is required for a dwelling, subject to it being the only dwelling on the lot and meeting the requirements set out in clause 35.06-2.[6]
3. Relevant to this case is that clause 35.06-2 requires that:

The dwelling must be connected to a reticulated sewerage system or if not available, the waste water must be treated and retained on-site in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

1. Decision guidelines relevantly call for consideration of:

The capability of the land to accommodate the proposed use or development.

The location of on site effluent disposal areas to minimise the impact of nutrient loads on waterways and native vegetation.

1. A permit is required for the construction of the dwelling under the ESO1. The matters called up for consideration under the ESO1 are not central to these proceedings and I need not consider them further. The relevant matter to these proceedings is the capability of the land to support an on-site effluent disposal system in accord with the various requirements set out above.

1. A separate permit is required to install a septic tanks system[7]. Under the Environment Protection Act 1970 (EP Act), the Council has delegated authority to consider such an application and issue or refuse to grant a permit for installation. In doing so:

(6) The municipal council may refuse to issue a permit if the municipal council considers that -

(a) the site of the proposed septic tank system is unsuitable; or

(b) the area available for the treatment or disposal of the effluent is not sufficient.

(7) The municipal council must refuse to issue a permit if the proposed septic tank system -

(a) is not of a type approved by the Authority for the purposes of this Part; or

(b) is contrary to any State environment protection policy or waste management policy;[8]

1. The State Environmental Protection Policy (Waters of Victoria) [the WoV SEPP] sets out at clause 32 that:

On-site domestic wastewater needs to be managed to prevent the transport of nutrients, pathogens and other pollutants to surface waters and to prevent any impacts on groundwater beneficial uses.

1. The WoV SEPP goes on to set out how council and the EPA are to work to attain the above objective by requiring assessment and permit conditions consistent with the Septic Tanks Code of Practice[9] (the Code of Practice).[10] Where relevant I have considered these matters.

1. Mr Sherman set out that the parties had agreed on all but one main point for the permit for a septic tank to issue (and so allow a permit for the dwelling). This sticking point was the need for disinfection of the wastewater stream from the Biolytix plant prior to its discharge into the reed bed system. In the alternative, if disinfection was not adopted then a fence (or presumably some other barrier) should be required to reduce the health risk arising from exposure to the wastewater. In fact, Mr Sherman ultimately argued that both should be required.
2. The material issue to be considered in this instance is one of protecting human health. The parties and their experts agreed that by adopting the closed system with no discharge to the environment, the environmental risks arising from other on-site disposal options would be satisfactorily addressed.
3. Mr Sherman relies on the EPA Guideline for Environmental Management Use of Reclaimed Water[11] (the Reclaimed Water GEM) that the effluent from the Biolytix plant is less than the Class D standard of water defined in the Reclaimed Water GEM. The failure to meet this standard is due to the water potentially containing more than 10,000 E Coli org/100ml.[12] It is Council's position that the water quality should be Class A, containing less than 10 E Coli org/100ml in order to manage the risk to human health. In order to meet this criteria disinfection of the wastewater is required. The Biolytix BF 6 system can be provided with a UV[13] or chlorination disinfection system to achieve this criteria.
4. The risk to human health is envisaged by Council to arise from the discharge of the water into the reed bed system where it was suggested that humans or animal vectors[14] could gain access to the water and hence be exposed to microbiological infection.
5. In considering the evidence and the submission made by the parties I find that the following matters arise.

What is the applicable standard for management of the treated wastewater?

1. Mr Sherman has relied on the Reclaimed Water GEM standards for the appropriate level of water treatment. In the context of considering a septic tanks system application, I consider that this is not the appropriate approach. The scope of the Reclaimed Water GEM states as is set out at section 1.2 is that

Primarily, this GEM applies to the use of reclaimed water from sewage treatment plants. This includes both municipal sewerage facilities treating mainly human sewage and industrial process water accepted via trade waste agreements, as well as those serving individual commercial premises ..

This guideline does not specifically address domestic reuse from individual household systems (for example sullage, greywater or effluent from residential septic tanks). Requirements for these systems are covered separately in the Code of Practice - Septic Tanks...

1. Further reading of the Reclaimed Water GEM points to the matters being addressed therein as those relevant to management of issues for the treatment by the producer of the water and the use of the reclaimed water for irrigation or other use (with the user generally being at some site other than the treatment site).
2. The adoption of these guidelines has limited value in the context of this matter. Indeed the guidelines point to the use of the Code of Practice as being the appropriate in this situation.

Does the water need to be treated to Class A standard within a closed system?

1. Mr Lawry made reference to the certification process of septic tanks systems, highlighting that matters such as the risk of exposure to wastewater and infection from pathogens is taken into consideration when assessing the systems for approval by the Environment Protection Authority (the EPA).[15]
2. The septic tank system in this case includes the two EPA approved systems, a Biolytix plant, a reed bed system and as well as an additional closed storage tank. The Code of Practice states that:

Part IXB of the [Environment Protection] Act...sets out a two-tier approval process for septic tanks where:

• EPA approves the type of onsite systems that may be installed in Victoria, via a 'certificate of approval system', and
• Local government operates a permit system, which controls the installation, maintenance and monitoring of individual units.

1. The human health risk arising from exposure to wastewater highlighted in the Code of Practice, and as needs to be considered by the Council, is primarily focussed on the disposal of the wastewater, i.e. the capability of the site to accommodate safe disposal. For example, section 4.3 of the Code of Practice refers to the fact that even if a system is approved by the EPA, councils should be satisfied that such a system addresses the 'land constraints (if any) identified within the land capability assessment'.[16] Similarly at section 4.4.3 the Code of Practice sets out that:

Although the effluent from a domestic wastewater system has been treated within the treatment unit, further management of this effluent is required to protect public health and the environment.

On-site effluent disposal is based upon a risk minimisation approach.

1. This commentary and others within the Code of Practice lead me to the view that the emphasis on the disposal aspects relies on the fact the EPA certification process has dealt with the risk of exposures from within the system or each component therein.
2. I find therefore that in having received EPA certification, the matters of human health arising from exposure of the wastewater stream while still within the septic tank system have been addressed and found to be satisfactory. If they were not the systems would not have gained approval. Any requirements for additional risk management when within a domestic situation will be set out within the certificate of approval. Reference to the reed bed and Biolytix Certificates of Approval[17] finds no additional management requirements to address health risks arising from exposure of the waste streams within the system.

Is the system closed and suitably designed to address possible human health risks to an acceptable level?

1. I accept the evidence of Mr Lawry that the reed bed system maintains the status of a closed system through the physical nature of its design.[18] It was his evidence, drawn from the design of the system, that there is no risk of direct contact with the water moving through the reed bed system because the water is contained within granular material that is covered by not less than 100mm of soil and thick growth of reeds. Inlet and outlet levels control the water levels such that the water would not, under normal operations, rise above the surface of the gravel.
2. I am therefore satisfied that on the balance of evidence, the system as a whole is one that can be considered to be closed. I accept that the reed bed has been designed and should operate such that there is no risk of direct exposure to the wastewater stream. There is no apparent benefit to be gained from requiring the additional disinfection sought by Council.
3. Having arrived at this conclusion however, I am also mindful of the need to protect the integrity of the overall system. In this respect, the reed bed is the most vulnerable component for possible inadvertent exposure to those who may not understand its purpose or function. This would be so for foraging animals, but of more concern for young children (who have a habit of digging in gardens). I therefore consider it to be an appropriate step to require signage to inform residents / occupants that the reed bed is more than just landscaping and require fencing to prevent unauthorised movement into or across the reed bed.
4. This fencing need not be excessive, not more than 1.2m in height and be of light construction sufficient to physical separate the reed bed area from the rest of the open space. A post and wire, light rail fence or similar form is appropriate (as opposed to a solid wood or brick fence). The exact nature of the fence can be agreed between Council and the applicant. Signage should be attached to the fence in a prominent location.

1. It follows from the above that I am satisfied that the septic tank system does not require a disinfection process, however some form of access control seems an appropriate precaution. I will direct that a permit be issued for the installation of the septic tank system having regard to these findings.
2. It follows that a permit for the dwelling should also issue.

[1] Council officer's report dated 17 April 2007.

[2] Set out under EPA Publication 746.1 March 2003.

[3] Other design details of the dwelling have been set out in the Council's planning assessment report which has been retained on the Tribunal's file.

[4] Grey water is that arising from showers, hand basins and laundry and black water is that arising from water closets and kitchen areas.

[5] Refer to the Septic Tanks Code of Practice, EPA Publication 891, March 2003.

[6] Clause 35.06-1 of the Glenelg Planning Scheme.

[7] Section 53L of the Environment Protection Act 1970

[8] s. 53M Part IXB - Septic Tank Systems Environment Protection Act 1970.

[9] EPA Victoria, March 2003, Publication 891.

[11] Publication No 464.2, EPA Victoria, June 2003.

[12] Escherichia coli (E Coli) bacteria is one standard by which microbiological contamination of water is assessed under the Australian Drinking Water Guidelines, NHMRC 2004.

[14] Animal vectors are here referred to as those animals that may carry human pathogens and so assist in the infection of human populations.

[15] These matters are set out in EPA Publication 748 EPA's Certificate of Approval System (undated).

[16] Similar comments are also made in EPA Publication 748.

[17] CA 90/04 and CA 033/92 respectively.

[18] The reed bed is a closed system with the water moving through a gravel and soil filter, with