A building used as a selfcontained residence which must include:

It includes out-buildings and works normal to a dwelling.

1. Whilst the definition of "dwelling" means that it must be a building, it is still the definition of a land use term. In a number of cases[3], the Tribunal has noted that this definition includes two components - one is descriptive of facilities that a building must contain in order to be a dwelling and the other describes the way the building must be used, namely as a self-contained residence.
2. Often confusion arises in the way that people use the term "dwelling". Frequently it is used to describe a particular style of building, eg a house, whereas the term is used in the planning scheme not in this sense but as a land use term. As I said in Armato v Hepburn SC[4]:

[13] It is also important when considering whether the land is used as a dwelling not to be distracted by the form of buildings on the land. Just because there is a house on the land does not necessarily mean that it is being used as a dwelling. The house on the subject land may well be used as a residence in other circumstances, but it is not being so used at present. The use of land for planning purposes is not determined by the style of development but the purpose for which the land is actually used. Thus it is fallacious to say that because there is a house on the land ipso facto the land is being used as a dwelling.

1. In the present case, I find there is no existing dwelling on the land because there is no building on the land currently being used as a self-contained residence within the meaning of the definition of "dwelling" in the planning scheme. There is a structure on the land, which was once used as a dwelling but not since 2004. This structure cannot be described as "an existing dwelling" within the meaning of the planning scheme. It may have the appearance of a house, but that does not make it a dwelling.
2. As there is no existing dwelling on the land, the alterations or extensions to the existing structure do not fall within the exemption in clause 35.06-5. Consequently, a permit is required for buildings or works associated with the proposed use of the land as a dwelling.

1. The next issue to consider is whether the applicant can apply for a permit to use the land for a dwelling without applying for a permit for buildings and works at the same time.
2. In my view, it would be impossible to assess a permit for the section 2 use of land for a dwelling without also considering buildings and works at the same time for several reasons.
3. First, the use could not occur without the buildings and works. The definition of the land use term "dwelling" refers to a building used as a self-contained residence, which must include certain facilities. Thus, as the use can only occur in a building, it is essential when considering a permit for this use to also consider the building that will be used as the self-contained residence and whether it contains the requisite facilities.
4. Second, the decision guidelines set out in clause 35.06-6 could not be properly considered in respect of the use without also considering the development component. Likewise, it would be impossible to properly consider the general decision guidelines set out in clause 65.01 of the scheme, such as the orderly planning of the area, the proximity of the land to any public land, and factors likely to reduce water quality, without considering the proposed buildings and works, in particular works associated with waste water treatment.
5. Both the decision guidelines of the Rural Conservation Zone and clause 65 require consideration of the State and local planning policy framework and the purpose of the zone before deciding on an application. Clause 31.02 provides that a proposal must produce an acceptable outcome in terms of these factors.[5]
6. One of the purposes of the Rural Conservation Zone is:

To encourage development and use of the land which is consistent with sustainable land management and land capability practices, and which takes into account the conservation values and environmental sensitivity of the locality.

1. One of the conservation values for the Rural Conservation Zone specified in the schedule to the zone is to protect domestic water supply quality.
2. I therefore consider it is impossible to disaggregate the use component from the development component in the case of considering a new use for the purpose of dwelling, especially having regard to the conservation value of protecting domestic water supply quality. In addition, I consider it would be impossible to consider use in isolation from development for a dwelling having regard to the government's Guidelines for Planning permit applications in open, potable water supply catchment areas (May 2009).

Permit for construction of a building under the ESO1

1. The applicant also argued that a permit was not required to construct a building or construct and carry out works under the Environment Significance Overlay pursuant to clause 42.01-2 because the schedule to the overlay contains an exemption for:
   • Repairs and routine maintenance and emergency works to existing buildings and works
2. He submitted that the buildings and works being undertaken amount to no more than repairs and routine maintenance.
3. I do not consider that the extent of the proposed development constitutes repairs and routine maintenance to existing buildings for the following reasons.
4. The existing structure on the land is derelict. It was subject to a building order[6] that the building be demolished because the buildings erected on the land are in such poor state and are a danger to health and safety. This order was set aside by the Building Appeals Board[7], nevertheless it determined that:
   • The property shall be vacated within 30 days of these orders and shall not be used as either a temporary or permanent residence until the following orders are complied with -
     • Approval is obtained from the relevant water authority for use of the dwelling as a residence, in particular for the installation of an appropriate septic or sewerage treatement system and;
     • Certification is obtained from a registered building practitioner in the category "Building Surveyor", certifying that the residence is fit for occupation. Certification shall include structural certification (1507) of restumping works as well as a report on the integrity of the existing structure.

Any alterations or new works must be completed in accordance with the Act and Regulations including submission for and receipt of any necessary building permits before any works requiring a permit commence.

1. In its reasons for determination, the Building Appeals Board said that the works involved "could hardly be considered to be minor works". Independently of this decision, I have also reached the conclusion that the proposed works are not minor and that they go beyond being simply repair and routine maintenance. This conclusion is based on the extent of works proposed, the reorganisation of rooms internally, the provision of a new kitchen and bathroom, the re-cladding and re-roofing of the structure, new windows and doors, and a deck extension. In my view, the extent of the works is significant and constitutes an effective rebuilding of the structure. I therefore find that a permit is required for the building under the Environment Significance Overlay.

Permit for works associated with waste water management system

1. It is common ground that the former septic tank system is unsatisfactory. The Land Capability Assessment and Design of Waste Water Management System for Proposed Dwelling[8] prepared for the land states that the old septic tank system is "to be dispensed with and does not meet current criteria for design purposes or location to Reservoir". A new waste water management system is proposed. This constitutes new works, part of which will be located in the Rural Conservation Zone and part within the Farming Zone. The proposed effluent disposal (irrigation) area will be located close to Sutton Park Road approximately 200 metres from the Newlyn Reservoir.
2. I find that the proposed waste water management system constitutes works within the meaning of the planning scheme[9]. The exemptions in clause 35.06-5 to the need for a permit for buildings or works associated with a section 2 use do not apply to the works that constitute the waste water management system because they are not:
   • an alteration or extension to an existing dwelling within the meaning of the first dot point of the exemptions;
   • an outbuilding associated with an existing dwelling within the meaning of the second dot point;
   • an alteration or extension to an existing building used for agriculture within the meaning of the third dot point;
   • a rainwater tank;
3. Therefore, as none of the exemptions under this provision apply, a permit is required under the Rural Conservation Zone for the works constituting the waste water management system because they are works associated with a use in section 2 of clause 35.06-1 (ie a dwelling).
4. I also find that a permit is required for these works in the Environment Significance Overlay under clause 42.01-2. Under clause 3.0 of schedule 1 to the Environment Significance Overlay, a permit is not required for:
   • buildings and works if all of the following conditions are met:
     • all waste water (if any) is discharged to a reticulated sewerage system
     • any site cut required is less than one metre in depth
     • any site cut required is less than 300 square metres in area
     • no effluent is discharged less than 100 metres from a waterway
     • no stormwater is discharged less than 100 metres from a waterway unless into an approved drainage system
5. It was suggested by the applicant that because no effluent is to be discharged less than 100 metres from a waterway, a permit would not be required. However, the exemption requires that all of these conditions must be met, not just some or any. As not all of the conditions are met, the exemption does not apply.

1. The Newlyn Reservoir and its surrounds, including the subject land, is part of the Tullaroop Reservoir Catchment listed in schedule 5 of the Catchment and Land Protection Act 1994 as a special water supply catchment, which provides water to a domestic supply. Under clause 66.02-6 of the planning scheme, a permit to use, subdivide or consolidate land, to construct a building or construct or carry out works, or to demolish a building or works must be referred to the relevant water board or water supply authority in a special water supply catchment.
2. I have found that a permit is required for use of the land as a dwelling, to construct a building, and to construct or carry out works. I therefore find that an application for these permits must be referred to both Goulburn Murray Water as the owner and operator of the reservoir and Central Highlands Water as the water supply authority.
3. Confusion as to which is the correct referral authority can arise on the part of responsible authorities in special water supply catchments, such as the Tullaroop Reservoir Catchment, where the reservoir is owned and operated by one authority, but water is supplied from the reservoir by another water authority. There has been a tendency sometimes to only refer applications under clause 66.02-6 to the owner and operator of the reservoir and not to the water supply authority.[10]
4. This confusion appears to arise from the wording of clause 66.02-6, which requires referral to:

The relevant water board or water supply authority.

1. It seems this is sometimes interpreted as meaning that an application needs only be referred to one or the other, not both, in cases where there is one authority owning and operating the reservoir, which provides water to a domestic supply, and another authority actually supplying the water.
2. In my view, clause 66.02-6 should be interpreted as requiring an application to be referred to any relevant water authority responsible for storage management or the collection, storage, treatment, transfer or distribution of water under the Water Act 1989. If there is more than one such authority, it should be referred to them all.
3. By not referring an application to each authority, various objectives of the planning scheme relating to the protection of water catchments and the quality and quantity of water may be compromised. There is a risk that government's Guidelines: Planning permit applications in open potable water supply catchment areas (May 2006) may not be appropriately applied.
4. The purpose of the referral provision in clause 66.02-6 is to protect water quality in special water supply catchment areas by ensuring that all authorities with an interest in the quality of water within the catchment are consulted. In my view, the Victoria Planning Provisions (VPPs) should be amended to put this issue beyond doubt, given the significance of these catchment areas. In addition, the terminology in the VPPs is outdated having regard to the current terminology of the Water Act 1989. For example, water authorities are now called water corporations.[11] References to water boards and water supply authorities are redundant and confusing.
5. I consider that clause 66.02-6 of the VPPs should be amended so that any application must be referred to:

Any relevant water authority under the Water Act 1998 and if more than one, to each authority.

1. Clause 66.04 requires referral of applications of the kind listed in the schedule in addition to the referral requirements of clause 66.02. Under the schedule to clause 66.04 in the Hepburn Planning Scheme, the following applications must be referred to the Department of Sustainability and Environment and the relevant water authority:

Any buildings or works that, in the opinion of the responsible authority, do not satisfy the environmental objective of this schedule.

An application for development within 100 metres of the full supply level of any domestic water supply reservoir, or within 100 metres of any waterway within the catchment area.[12]

1. From the information supplied with the permit application and the material before me, it is difficult to conclude with certainty whether the building and works are within 100 metres of the full supply level of the Newlyn Reservoir. In my view, doubt about this issue would justify the council requiring further information from the applicant.[13]
2. The environmental objective of schedule 1 of the Environment Significance Overlay is:
   • To protect the quality of domestic water supplies within the Shire and the broader region.
   • To maintain and where practicable enhance the quality and quantity of water within watercourses.
   • To prevent increased runoff or concentration of surface water leading to erosion or siltation of watercourses.
   • To prevent erosion of banks, streambeds adjoining land and siltation of watercourses, drains and other features.
   • To prevent pollution and increased turbidity and nutrient levels of water in natural watercourses, water bodies and storages.
3. Given the proximity of the proposed buildings and works to the Newlyn Reservoir, I consider it would be reasonably open to the council to form an opinion that the building or works do not satisfy the environmental objective of the overlay. If it formed this opinion, this would also trigger a referral under clause 66.04.

1. For the reasons set out above, I find that a permit is required under the planning scheme for:
   • Use of the land as a dwelling under clause 35.06-1 (RCZ)
   • Buildings and works associated with use of the land as a dwelling under clause 35.06.5 (RCZ)
   • Construction of a building and construction or carrying out of works under clause 42.01-2 (ESO1)
2. I find that any application for this use and development must be referred to Goulburn Murray Water and Central Highlands Water under clause 66.02-6. An application to construct a building or to construct or carry out works under clause 42.01-2 may be required to be referred to the Department of Sustainability and Environment and the relevant water authority under clause 66.04.
3. I find that the structure on the land is not an existing dwelling for the purpose of the exemptions to the need for a permit for building or works set out in clause 35.06-5.
4. I note that this application for declaration arose because the applicant refused to amend his application for permit for use of the land as a dwelling to also include buildings and works. The applicant has been quite open about his purpose in applying for a use permit only, which is to avoid the scrutiny by water authorities and assessment against the catchment protection objectives of the planning scheme that an application for buildings and works would entail.
5. As I have outlined, the provisions of the scheme do not enable the proposal to avoid this scrutiny. I consider the controls are quite clear in this respect. But even if there was any ambiguity, for example in the way in which the term "existing dwelling" should be interpreted in clause 35.06-5, the scheme should be interpreted in such a way as to give effect to the clear purpose and effect of the planning controls and policy applying to the land. The protection of water quality is a paramount objective applying to this land. It would therefore not be appropriate to interpret the planning scheme provisions in such a way as to avoid the need for proper scrutiny of all aspects of a proposal.
6. Any requirement under other legislative provisions for a septic tank permit does not usurp the need for assessment under the planning scheme. Such a permit is required in addition to a planning permit: it is not a substitute.
7. Based on my findings, I am not prepared to make the declaration that the applicant seeks. This means that the applicant should either amend his permit application, as requested by the council, or the council may refuse it based on the reasons set out in this decision.

[1] Clause 35.06-1 of the Hepburn Planning Scheme.

[2] These requirements are not relevant for present purposes as part of this proceeding.

[3] For example, Cotsonis v Darebin CC [2005] VCAT 232

[4] Armato v Hepburn SC [2007] VCAT 603

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority 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.

[6] Under section 113 of the Building Act 1993 dated 23 July 2007

[8] Prepared by P E J Consulting (March 2008)

[9] Under clause 71 of the planning scheme a term has its ordinary meaning unless that term is defined, inter alia, in the Planning and Environment Act 1987 or defined differently in the scheme. Section 3(1) of the Planning and Environment Act 1987 defines works as follows:

works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil.

[10] For example, see Rozen v Macedon Ranges SC [2009] VCAT 2746

[11] Part 6 Water Act 1989; an authority under the Act means, for current purposes, a water corporation (section 3 Water Act 1989.

[12] See also clause 5.0 of schedule 1 to the Environment Significance Overlay.

[13] Under section 54 of the Planning and Environment Act 1987