Victorian Civil and Administrative Tribunal|2004-10-15

Gleeson v Hepburn SC [2004] VCAT 2012 (15 October 2004)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Township Zone. Environmental Significance Overlay (Proclaimed Catchment Protection). Dwelling. Corner Site (Frontage 25.15 metres, Area 1366 square metres). State and Local Planning Policy Framework. Land capability. Effluent disposal. Wastewater disposal field buffer distances.

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for a dwelling at 7 Walkers Avenue Lyonville generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the use and development commences three (3) copies of amended layout plans must be submitted to and approved by the Responsible Authority. These plans must be in accordance with the original plans submitted but must be amended to show:

(a) The on site waste water treatment system proposed in accordance with conditions 3;

(b) Any landscaping proposed in association with the on site waste water treatment system.

An endorsed copy of such plans will form part of this permit.

2 The use of the premises, the layout of the site and the size, and internal layout of the buildings and works as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

(a) A design, including plans and specifications, for an on site waste water treatment system generally in accordance with the Septic Tanks Code of Practice, publication 891, March 2003 must be submitted to the Responsible Authority and be to the satisfaction of both the Responsible Authority and Goulburn Murray Water. Prior to the occupation of the permitted dwelling the satisfactory on site waste water treatment system must be installed and operating to the satisfaction of the Responsible Authority and Goulburn Murray Water.

(b) A management plan setting out the measures to be implemented for the proper management and operation of the on site waste water treatment system must be submitted to the Responsible Authority and be to the satisfaction of both the Responsible Authority and Goulburn Murray Water. The plan must not be revised without the consent of the Responsible Authority and Goulburn Murray Water. The Management Plan must be implemented on an ongoing basis by the owner.

The design and the management plan must form part of any permit application under Part IXB of the Environment Protection Act 1970.

4 Erosion attenuation measures must be put in place during construction and to treat any exposed surfaces resulting from construction. These measures must be to the satisfaction of the Responsible Authority.

5 All driveways and access roads, drains, banks, batter slopes, excavations and any other earthworks or structures appurtenant thereto associated with the development hereby permitted must be so constructed and maintained as not to create or increase soil erosions of the land, to the satisfaction of the Responsible Authority.

6 The dwelling hereby permitted must have a water supply of minimum 4,500 litre capacity for domestic use and 10,000 litre capacity for fire fighting purposes to the satisfaction of the Responsible Authority.

7 The dwelling hereby permitted must be connected to a reticulated electricity supply to the satisfaction of the Responsible Authority:

8 Stormwater Drainage shall be connected to the legal point of discharge, being the Walkers Rd road reserve drainage to the satisfaction of the Responsible Authority..

9 This permit will expire if the use and development hereby permitted is not commenced within 2 years of the date of issue and completed within 4 years from the date of issue. An extension of time may be sought in writing up to three months after the expiry of the permit.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Dr Anne Graesser, Manager Water Systems Health. Dr Graesser called Mr Paul Williams, Land Capability Assessor as a witness in support of her submissions.

1 This is an application to review the decision of the Responsible Authority to refuse permission for a construction of a dwelling on land in Walkers Road, Lyonville. The Responsible Authority refused permission because Goulburn Murray Water, the relevant catchment management authority, objected to the grant of a permit. The notice of refusal to grant a permit was issued on the basis of the following reasons:

1. In accordance with 61(2) of the Planning and Environment Act 1987: -

The Responsible Authority must decide to refuse to grant the permit if a relevant referral authority objects to the grant of a permit.

2. Approval would be inconsistent with the provisions of Clause 32.05 of the Hepburn Planning Scheme, Township Zone, in which 32.05, Use of a Dwelling provides that wastewater from each dwelling must be treated and retained within the lot in accordance with the State Environmental Protection Policy (Waters of Victoria) under the Environmental Protection Act 1970.

3. The proposal is inconsistent with the purpose of Clause 42.01 ENVIRONMENTAL SIGNIFIANCE OVERLAY, to ensure that development is compatible with identified environmental values.

4. The proposal is inconsistent with the objective of the State Planning Policy Framework of the Hepburn Planning Scheme regarding 15 ENVIRONMENT, Protection of catchments, waterways and groundwater, ie to assist the protection and, where possible, restoration of catchments, waterways water bodies, and groundwater.

5. The proposal is inconsistent with the provisions of the Local Planning Policy Framework of the Hepburn Planning Scheme, in that the construction of a dwelling on the subject land is seen as inconsistent with Objective 2 of ENVIRONMENT & HERITAGE. To protect surface and groundwater quality at a local and regional level.

2 The parties and the witness at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

3 Lyonville is a small residential allotment located on the Daylesford Trentham Road approximately 5 kilometres west of Trentham. Lyonville appears to date from the early development of the area, and within the area of the township affected by the township zone there are a number of vacant lots. The township straddles the divide between the catchments of the Loddon and Coliban Rivers.

4 The subject land is a vacant lot located on the north eastern corner of the intersection of Walkers Road and Streckfuss, Road towards the southern edge of the Lyonville Township. Both the adjoining roads are gravel roads, the land is essentially undeveloped, and vegetated with mown grasses. The land to the east is developed with a dwelling, the land to the north has a number of sheds but no dwelling.

5 The proposal is to develop a simple two bedroom dwelling. The dwelling including the carport has an area of approximately 125 square metres.

6 The subject land falls within a township zone, and under the zone provisions of dwelling is a permitted use provided that all the waste water from the proposed dwelling is treated and retained within the lot, in accordance with the State Environment Protection Policy (Waters of Victoria). If this requirement cannot be met, the use of the land for the purpose of a dwelling is prohibited. A permit is required for buildings and works under the provisions of the Environmental Significance Overlay, which most relevantly seeks to maintain and enhance the quality of water, in particular water used for domestic purposes.

7 I am of the opinion that there are two questions which must be resolved in the context of this application for review, they are:

i Whether or not waste water can be retained and treated within the site, and;

ii The orderly planning issue arising from the cumulative impact of new dwellings and new septic systems on vacant lot within Lyonville.

8 I found Mr Williams evidence in relation to the capability of the land to retain and treat waste water to be most helpful. It is apparent from his evidence that the best option for on site treatment in this case is a system which relies on subsurface or covered surface irrigation. Mr Williams calculated that for the subject land, a two bedroom dwelling would require an irrigation area of 280 square metres, plus a reserve irrigation area of 280 square metres. The total area, that is 560 square metres, is approximately 41% of the site area. This is a conservative calculation because no allowance is made for the lack of reticulated water.

9 It was Mr Williams ultimate conclusion that if one had regard to the buffer distances required by the Septic Tanks Code of Practice, March 2003, and the total irrigation area of 560 square metres referred to above, then the land could not be practicably used for the purpose of a dwelling and at the same time retain and treat waste water within its curtilage.

10 While the percentage of the site required for irrigation areas is large, it is in fact the buffer distances from boundaries which most extravagantly consume the land which might otherwise be available for waste water irrigation. The most relevant buffer distances from the Code of Practice are set out below:[1]

11 Mr Williams allowed 6 metre buffers from the west, south and east boundaries of the subject land, and a 3 metre buffer from the north boundary. The subject land is a corner site, and on both frontages, there are wide grassy verges. The character of the township is very rural, and it is likely that these road verges would be rarely used by pedestrians. It occurred to me that in this context it should be possible to reduce the buffer distances adjacent to these road frontages, and I explored this option with the parties and the witness at the hearing.

12 Having considered the Code of Practice, I am of the opinion that the buffer distances could be reduced if a management program is incorporated into the permit conditions. However, having more closely examined the Code of Practice I am of the opinion that the code does not prescribe a buffer or setback distance from an allotment boundary where that boundary does not adjoin an adjacent lot. Therefore, in this case, there is no proscribed buffer distance from the lot boundaries abutting Walker Road or Streckfuss Road.

13 Notwithstanding the prescriptions of the code, there would be circumstances in the exercise of a discretion where I think it would be inappropriate to accept a zero setback from a street boundary, an example might be a boundary adjoining a popular and well used footpath, however, such considerations do not exist in this case.

14 In the table below I have applied the buffer distances from the Code of Practice, to the site plan which formed part of the permit application and derived the areas available on site for waste water disposal allowing for street boundaries setback in the range of 0 to 2 metres. The land affected by the proposed driveway, and all the land to the south of the proposed dwelling, is excluded from the area calculated.

15 It is apparent from the above table that even with a 2 metre setback from street boundaries, there is sufficient site area available to accommodate the irrigation areas required on the basis of Mr Williams assessment.

16 I do not think that it can be said that in this case a permit for a dwelling will result in a impracticable outcome:

* In the immediate environs of the proposed dwelling there is some 232 square metres (including the verandas) available for more intensive forms of outdoor use, unfettered by the irrigation areas including an area 15 metres wide and 8.5 metres deep.

* The reserve area, is just that in reserve, and could be used without restraint as part of the garden until such time as it is required for use as a waste water irrigation area.

* The boundary buffer areas, are large, and are capable of being used for backyard type purposes which are unsuitable for waste water irrigation areas.

17 Dr Graesser remained concern about the long term strategic impact of cumulative development within the Lyonville township. In particular, the south western corner of the township zone there are two larger undeveloped parcels of land which the Parish map seems to indicate are divided into some 22 township size lots.

18 I'm aware of some scientific work, in the Benalla area, which went someway in supporting the contention that the clustering of septic tank systems can lead to contamination of ground water. Unsewered townships within potable water catchments are clearly a matter of concern and a strategy is required for the management of wastewater in such towns.

19 However, if an individual owns or purchases a lot within a township zone, and can satisfactory demonstrate that they can retain and treat waste water within the curtilage of the lot in accordance with the requirements of the Code of Practice, then I do not think it appropriate to refuse permission on the basis of this more general concern. The decision to include the land within a township zone brings with it the implication that the land can be used for an township purpose and in particular for a dwelling

20 The proper way to deal with this situation, on a strategic basis, is to take steps such as:

* Reconsider the approach to the issue under the planning scheme, including issues such as township zone boundary, whether or not a restructure overlay would be helpful, the provisions contained in the schedule to the Environmental Significance Overlay, and local policy;

* Develop a local law, or some other device, to require householders to demonstrate that there septic systems are functioning correctly, and are regularly maintained, in many respects it is the effectiveness of the many existing septic systems in townships such as Lyonville which is the more important issue, and;

* Consider the practicality of treating stormwater discharge from the township generally having regard to recent best practice in relation to stormwater drainage design.

21 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.

22 In deciding the conditions to be included on the permit I have had regard to the "draft" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons. In relation to the draft conditions I have decided:

* To replace the numerous septic tank conditions with more generalised conditions requiring a system to be designed and operated to the satisfaction of both the Responsible Authority and Goulburn Murray Water. The management plan in particular should form part of the conditions of the septic tank permit issued under the Part IXB of the Environment Protection Act 1970, and;

* To delete conditions unrelated to the discretion available under the Environmental Significance Overlay, to the extent that these conditions are necessary, they can be implemented under the building and other powers of the council.

[1] Septic Tanks Code of Practice, March 2003 - Table 4.6

Environment Act 1987

Environmental Protection Act 1970

Gleeson v Hepburn SC [2004] VCAT 2012

At a glance

Court

Decision date

Source

Judgment (59 paragraphs)

Gleeson v Hepburn SC [2004] VCAT 2012 (15 October 2004)

Parties

Legislation Cited (3)