HBL Vic Pty Ltd v Hume CC [2025] VCAT 300

HBL Vic Pty Ltd v Hume CC [2025] VCAT 300 | Case summary | Zoe

[20]

This proceeding concerns a proposal to develop the subject land for residential purposes, as provided for in the Craigieburn West Precinct Structure Plan ('PSP').
The planning permit application ('permit application') lodged with the Hume City Council ('council') sought approval for a subdivision comprising 1051 lots, road reserves and open space reserves.
Under the Hume Planning Scheme ('planning scheme'), in addition to the Urban Growth Zone - Schedule 12, Craigieburn West Precinct Structure Plan ('UGZ12'), the subject land is within Environmental Significance Overlay - Schedule 9, Greenvale Reservoir Catchment Protection ('ESO9').
Relevantly, in accordance with the requirements of clause 5.0 of the schedule to ESO9 and the schedule to clause 66.04 of the planning scheme, council referred the permit application to Melbourne Water Corporation ('Melbourne Water') pursuant to s 55 of the Planning and Environment Act 1987 (Vic) ('PE Act') in its role as a determining referral authority.
This referral requirement arises from the location of the subject land within the catchment of the Greenvale Reservoir ('reservoir'), a water storage facility supplying drinking water to the western and north-western suburbs of Melbourne. Melbourne Water is the relevant water storage manager for the reservoir.
Pursuant to s 56(1) of the PE Act, Melbourne Water objected to the permit application on grounds which refer to the potential impact of the proposal on the water quality of the reservoir.
In its consideration of the permit application, council concluded the proposal represents an acceptable outcome when assessed against the relevant policies and provisions of the planning scheme, and the PSP. In reference to Melbourne Water's objection, council considered that the matters raised in that objection could be addressed by appropriate permit conditions.
Notwithstanding this, by virtue of Melbourne Water's objection and the operation of s 61(2) of the PE Act,[2] council refused the permit application. The sole ground of refusal reads:
1. Pursuant to Schedule to Clause 66.04 of the Hume Planning Scheme, Melbourne Water are identified as a Determining Authority for all applications affected by the Environmental Significance Overlay - Schedule 9. Section 61 (2) of the Planning & Environment Act 1987, states that Council must decide to refuse to grant a planning permit if a relevant determining referral authority objects to the grant of a planning permit.
This is an application to the Tribunal for a review of council's decision.
Prior to the hearing, having regard to Melbourne Water's objection and its subsequent statement of grounds as a party to this proceeding, the applicant prepared and circulated amended plans of the proposal.
As summarised in the applicant's submission, the amended plans change the proposal by reducing the development from 1051 lots to 585 lots, with an interim bund installed on the balance of the land,[3] which is to remain in an undeveloped state (identified as 'Future Stage 14'). The development of Future Stage 14 for urban purposes would be subject to the delivery of the permanent bund solution by Melbourne Water on the neighbouring land to the south to protect the reservoir's water quality.
There being no objection from any party, at the commencement of the hearing, the permit application was amended by substituting the amended plans for the permit application plans.
Having considered the amended plans, Melbourne Water maintains its opposition to the proposal. Its grounds are extensive and detailed, and are reproduced in Appendix A to these reasons.
On the basis of the submissions and the evidence, the key issue for determination in this proceeding is whether the proposed development will pose an unacceptable risk to the reservoir's water quality.
As confirmed by council and Mr Glossop's evidence, the proposal achieves an acceptable level of compliance in respect of all other relevant considerations under the planning scheme, or will otherwise do so with appropriate permit conditions. These include the provisions of the zone, applicable policies and the requirements of the PSP. Based on the submissions and evidence, we have no basis to find otherwise. We will, therefore, not address these other considerations in our reasons.
Having considered the submissions and evidence, with regard to the relevant polices and provisions of the planning scheme we have determined to affirm council's decision. Our reasons follow.

[23]

Directly to the north of the subject land is what is known as the Aston Estate. It is within the Craigieburn R2 Precinct Structure Plan. It is an established residential area. An interim bund, being the reservoir protection mechanism, extends along the south boundary of this estate.
To the west is undeveloped land which is within the UGZ12 and the PSP. The PSP shows that land as accommodating a government school, a non-government school, community facilities and residential development.
To the south-west is what is known as the Aspect Estate, another established residential area. That subdivision is within a different schedule to the Urban Growth Zone - Schedule 2 ('UGZ2') and the forms part of the Greenvale North R1 Precinct Structure Plan. An existing permanent bund, described as Bund D extends along the east of this estate on land owned by Melbourne Water. This is with the exception of a section approximately 90 metres long, closest the southern boundary of the subject land, which is presently an interim bund.
To the east is vacant land in the Comprehensive Development Zone and, to the south-east, a residential area known as the True North Estate that is also within the UGZ2 and forms part of the Greenvale North R1 Precinct Structure Plan. The protection mechanisms associated with this estate are permanent Bunds A East, B1 and B2 on land owned by Melbourne Water (shown with a magenta-coloured dash in Figure 1 above), and a section of interim bund to the north of Bund B2, approximately 180 metres long on privately owned land (shown with a green-coloured dash in Figure 1 above).
To the south of the subject land is vacant land which is in the Rural Conservation Zone - Schedule 3. A proposed amendment to the planning scheme, Amendment C273, proposes the rezoning of that land to Urban Growth Zone (Schedule 13) and it is within the Greenvale North Part 2 Precinct Structure Plan ('GNPSP'). That amendment has recently been exhibited by the Victorian Planning Authority ('VPA'). Relevantly, a permanent bund, described as 'Future Bund C' (shown with a purple-coloured dash in Figure 1 above). The land required for Future Bund C forms part of the GNPSP, will ultimately be in public ownership and is the bund proposed to be constructed by Melbourne Water. Melbourne Water advised that Bund C is anticipated to be constructed within 4.5 years.
Melbourne Water advised that its submission in respect of Amendment C273 includes the following proposed drafting for the proposed Urban Growth Zone (Schedule 13) and GNPSP:

[44]

The RMP, is a document required to be considered by the decision guidelines of ESO9.
The Executive Summary of the RMP identifies the following:
- Greenvale Reservoir is now surrounded by the urban growth corridor for north-western Melbourne
- The report summarises the risk assessment and risk management planning undertaken as part of conforming to the requirements for Water Storage Managers in Victoria under the Safe Drinking Water Act 2003 (Vic) ('SDWA') and the Safe Drinking Water Regulations 2005 (Vic) ('SDWR').
- The document sets out the nature of hazardous substances that might contaminate the Greenvale raw water storage reservoir were urban development to expand unchecked within its catchment.
- The document sets out preventative measures required to control hazards to reduce risks to within tolerable levels, defined as being at, or below, current levels of risk.
- The key issues are nominated as:
  - urban development is an established source of contaminants that are significantly hazardous to health and drinking water quality. Such development cannot take place in drinking water catchments unless highly reliable protection is implemented
  - the net effect of any development in a water supply catchment needs to be to maintain, or reduce, the level of risk - risks should not be allowed to incrementally increase;
  - all parties, including regulators, government agencies and developers, agreed on a balanced outcome for drinking water quality risk management in the Greenvale Reservoir catchment that was considered to represent a net reduction in water quality risk whilst allowing development to proceed;
  - the appropriate parties will play key roles in managing particular risks - e.g. Melbourne Water (the Greenvale water storage manager, as defined under the Safe Drinking Water Act 2003) will manage dam structures such as bund walls and Yarra Valley Water (the sewerage license holder, as is defined in the Water Industry Act 1994) will manage sewerage systems and recycled water assets; and
  - verification activities form a key part of the risk management plan and ongoing verification is required to demonstrate ongoing compliance.
According to the document, the Greenvale water storage manager (i.e. Melbourne Water) has developed the RMP to:
- Coordinate the management of the likely cumulative impacts of development to achieve net beneficial outcomes;
- Avoid piecemeal decision making;
- Improve certainty for the Greenvale water storage manager (regarding risk increment over time) as well as planning authorities and landholders; and
- Enable consistent and transparent application of the Greenvale water storage manager Public Health/Risk Management policies to complex issues.
The RMP states that under the SDWA and SDWR, the Greenvale water storage manager is required to complete a Risk Management Plan as a water storage manager, setting out the possible sources of risk of drinking water contamination, identify how to adequately control those risks and verify that controls are implemented in practice.
As part of risk assessment in developing the RMP, a scenario of future development with best practice preventative measures (residual risk) was considered. The preventative measures include a 1 in 1 million AEP bund maintained to dam safety standards by Greenvale water storage manager for stormwater retention with a fully sewered development with sewerage maintained by the sewerage licence holder, and subject to audit during installation and ongoing verification of preventative measures.
The assessment includes the following statement regarding the risk of bund failure:

[58]

The bund that extends along the southern edge of the Aston Estate (located to the north) is on private land and has been installed in satisfaction of obligations under an agreement made pursuant to s 173 of the PE Act. It is an interim measure until the proposed permanent Bund C is installed on the land to the south of the subject land by Melbourne Water.
Existing bunds (Bunds A east, B1 and B2 and the 180 metre long interim bund to the south-east and Bund D to the south-west of the subject land, along with a farm dam (ornamental lake) currently provide protection to the reservoir. The subject land and undeveloped surrounds ultimately drain to Yuroke Creek (shown in light blue immediately south of the subject land in Figure 1). At the culvert crossing of Yuroke Creek, once its flow capacity is exceeded, floodwaters will pond behind the culvert and in a sufficiently large event will overflow to the reservoir.
The RMP[6] identifies that the existing configuration of measures to prevent stormwater ingress into the reservoir is a 1% AEP catch drain. Dr Jempson's evidence[7] indicates that for the existing case, there is potential for runoff to enter the reservoir in the 1% AEP event.
The expert evidence of Mr Glover was that a geotechnical assessment of the existing bunds was undertaken by his firm. As part of the assessment, his firm was supplied with the SMEC Australia Pty Ltd (SMEC) Issued for Construction (IFC) drawings for the bund. The drawings show two separate designs for the bund: one for the design for the permanent section (Bund D) south of chainage 125, and a second design for the (Bund D) temporary (i.e. interim) section north of chainage 125. An indicative cross section through the temporary bund (Indicative Section 2) and permanent bund (Indicative Section 3) and are reproduced below, with some commentary from Mr Glover on the differences between the two in boxed comments. Most notably is the lack of a concrete core wall and cutoff and less material zones for the temporary bund.

[62]

Dr Jempson confirmed that the proposed detention basin will be dry and clay-lined. That is, it will only temporarily hold stormwater. An orifice controlled buried low flow pipe is proposed to run from the base of the detention basin south for approximately two kilometres adjacent to the existing contour drain, before outfalling at the convergence of the Yuroke Creek concrete channel/Greenvale Park Drive.
Melbourne Water confirmed that the interim Bund C tie-in works that extend to permanent Bund D are located on their land. In oral submissions Melbourne Water also confirmed the that the proposed low flow pipe will be located on their land.
Figure 2 above states that the required crest level is RL204.68m AHD.
A conclave was held between Dr Jempson, Mr Northfield and Mr McLean (amongst others) on 9 July 2024 to review the Venant Solutions hydrological and hydraulic models for the subject site, based on the Technical Memorandum dated 5 June 2024. The parties agreed that the proposed interim retarding basin would prevent runoff from the proposed interim development entering Greenvale Reservoir for events up to the 1 in 1,000,000 AEP storm event.
Mr Northfield was of the view that the incorrect modelling of the one-hour storm duration in the 1 in 1,000,000 AEP storm event resulted in the peak flood level in the interim retarding basin being underestimated, with the consequence that the target 600mm freeboard to the crest level is not achieved. On this basis, Dr Jempson re-ran the one hour storm event model and found that the peak water level in the retarding basin is 204.19m AHD resulting in a freeboard to the crest level of 490mm. The crest level was therefore proposed to be raised to RL204.79m AHD to maintain the 600mm freeboard requirement.
Following cross-examination, Dr Jempson provided further information[9] that included hydrological and hydraulic modelling that incorporated near term climate change for Shared Socioeconomic Pathway ('SSP') 8.5 for the critical storm duration, being the one hour event. We consider that near-term climate change is relevant as it is not known with certainty when permanent Bund C will be commissioned, notwithstanding that Melbourne Water say it will be commissioned within 4.5 years from now. This satisfies the requirements of the PSP and clause 13.01-1S.
This resulted in the 1 in 1,000,000 AEP storm event bund flood level being raised further to RL204.42m AHD. With a 600mm freeboard allowance, the required crest level is RL205.02m AHD. Dr Jempson confirmed that the existing permanent Bund D has sufficient cross-section to accommodate the increased peak flows that result from the near-term climate change analysis.

[66]

Mr Glover's geotechnical investigation concluded that the existing embankment was likely to be geotechnically adequate to retain the design water level described in the Alluvium Stormwater Management Strategy[10] and Venant Report[11] for up to 10 years, subject to modifications. Mr Glover notes that where the embankment is expected to operate for longer than 10 years, modifications to the existing structure are not considered to be adequate and full reconstruction should be undertaken.
Mr Glover stated that the preliminary investigations and assessments indicate that it is feasible to construct and maintain the proposed interim bunds until such time as Melbourne Water delivers the permanent bund solution.
Mr Glover's opinion is that if the design of the proposed interim bunds is carried out by competent persons using established assessment methods and software packages, to achieve acceptable Factors of Safety, and with Melbourne Water design review, it is reasonable to expect the likelihood of bund failure due to design deficiencies to be Rare (with Rare having the same meaning as the Melbourne Water Risk Management Procedure: "Risk will only occur in exceptional circumstances (less than once every 20 years)"). Similarly, his evidence is that with well-crafted design documentation (reports, drawings, specifications) and an experienced and competent contractor working under the supervision of an experienced and competent Geotechnical Inspection and Testing Authority ('GITA') with Dam Engineer and Melbourne Water oversight, it is reasonable to expect the likelihood of bund failure due to construction deficiencies to be Rare.
Mr Glover says that where the interim bunds are constructed in advance of the final section of the permanent bund, there will be three areas where additional consideration will be required at the time that the permanent bund solution is constructed, as follows:
- Where construction vehicles need to cross the interim bund, resulting in damage to the bund.
- Where the final section of the permanent bund ties into the existing permanent bunds, requiring partial removal of the interim bund.
- Where the final section of the permanent bund is close to the interim bunds, resulting in a constrained working area.
He said that the increased construction complexity is within the capability of a competent contractor experienced in constructing Melbourne Water dams.
Mr Glover was asked about bund failure modes and whether the Department of Environment, Land, Water and Planning Levee Management Guidelines 2015 Appendix E 'Potential modes of levee failure' were considered. In oral evidence, he stated that whilst Table 1 of his evidence considered a number of scenarios, some modes were not discussed. However, it was his opinion that each mode can be addressed by appropriate design, construction and maintenance regimes in the detailed design phase.
Mr Glover's opinion is that subject to proper, design, construction and maintenance, the risk of failure of the interim bund is the same as for the permanent bund.
We consider that, based on Mr Glover's evidence concerning the existing dam structure and the uncertainty surrounding the design life of interim Bund C, as a precautionary measure, it should be fully reconstructed. The benefit of this is two-fold: uncertainty in the quality of the existing materials, their compaction and their permeability is minimised. Secondly, it avoids the possibility of reconstruction at a later date should the permanent Bund C solution be delayed for whatever reason.
In the absence of expert evidence to the contrary, we attribute weight to Mr Glover's evidence with regard to the suitability of the proposed concept design, provided that sufficient 'checks and balances' are incorporated into the detailed planning, design, construction and monitoring of the structure.

[69]

The SDWA specifically sets out the statutory obligations of water suppliers and water storage managers. Given the absence of reference in the planning scheme, we consider that it is not a relevant consideration to this application.
Similarly, the SDWR relates to the supply of safe drinking water by water agencies, water suppliers and water storage managers. Similarly, we consider that it is not a relevant consideration to this application as it does not apply to private landholders.
The ADWG provide a framework for good management of drinking water supplies that, if implemented, will assure safety at point of use. The ADWG have been developed after consideration of the best available scientific evidence. They are designed to provide an authoritative reference on what defines safe, good-quality water, how it can be achieved and how it can be assured. They are concerned both with safety from a health point of view and with aesthetic quality. The purpose of the ADWG is to provide the authoritative Australian reference for use within Australia's administrative and legislative framework to ensure the accountability of drinking water suppliers [Tribunal emphasis] (as managers) and of state and territory health authorities [Tribunal emphasis] (as auditors of the safety of water supplies). The ADWG are not relevant to land developers and are not referenced in the planning scheme as a relevant consideration to this application.
Relevantly, the RMP is silent on specific preventative measures to control the contamination of groundwater or a requirement for a specific risk assessment or adherence to any section of ADWG (or its predecessors, noting that the first version of this document was published in October 2011).
The RMP states that 'Provided the recommended risk management measures are installed, implemented, and maintained correctly, the level of risk to water quality should reduce over time representing a win-win outcome for the developers and the water suppliers.'
Melbourne Water submitted a significantly redacted internal Memorandum 'Drinking water quality risks associated with proposed development at 20 Dunhelen Lane, Craigieburn' dated 7 August 2024 ('MWRA'). The ESO9 decision guidelines specifically require that the responsible authority must consider, as appropriate, the current approved version of the RMP.
Given that the MWRA is not the current approved version of the RMP, is not referenced in the planning scheme, has not been published, contains redactions and was not able to be tested in the hearing, we can only afford it little weight.
Dr Denison reviewed the MWRA, amongst other documents, as part of her risk assessment of the interim bund solution. Some of her key findings were:
- Melbourne Water say that the overall risk associated with the interim bund is the same as the final (permanent) bund they will construct.
- 1.1ha of standing water in the existing (ornamental) lake would be removed and replaced with a dry retarding (detention) basin and two relatively small temporary sediment basins, which would be lined to prevent infiltration.
- Currently, grazed land maybe contaminated with faecal matter from cattle and/or kangaroos. The development will remove these sources of potential E.Coli or microbial contamination.
Based on the information contained in the Alluvium Surface/Stormwater Management Strategy Report (2024), the evidence of Mr Glover, the proposed permit conditions and the review of MWRA, it is her opinion that the interim bund and associated structures would not pose a higher risk than the final (permanent) bund built by Melbourne Water.
Contrary to Melbourne Water's submissions and proposed conditions, we consider that the satisfaction of ESO9 requirements does not require a new risk assessment to be undertaken by an applicant.

[71]

Dr Deere contended, amongst other matters, that groundwater contamination from within the development may affect the reservoir's water quality has not been addressed by the applicant.
The RMP specifically lists preventative measures required to control hazards to reduce risks to at or below current and tolerable levels and specifically states the hazards as being viral, bacterial, protozoan pathogens, organic matter, hazardous household waste and nutrients.
Dr Deere was asked why pathogen transmission via groundwater was not considered as a hazard in the RMP. He acknowledged that the RMP should be revised by Melbourne Water to include this mode of transmission.
Mr Glover was asked about the risk of pathogens or contaminants migrating to the reservoir from the subject site via groundwater transmission. Mr Glover stated that pathogens or contaminants need a pathway to get into the groundwater. The ground needs to be of a sufficient permeability to allow entrance to the groundwater. Given that there are natural low-permeability clays on the subject site, the existing dam contains low-permeability fill and that low-permeability clays will be placed at the base of the detention basin and on the upstream side of the interim bund, in his opinion, the likelihood is 'very, very low' for the expected lifespan of that structure.
Dr Denison was also questioned about this risk. She said that pathogens will be filtered by soil and are highly unlikely to reach the groundwater as they have a propensity to bind to soil. In her opinion, the chances of contaminants reaching the reservoir via groundwater would be 'very low' due to the known depth of groundwater at the site.
The MWRA discusses contaminant transmission via groundwater in some detail. The preventative measure in the RMP that there is 'no recreational and/or community ponds, wetlands, retarding basins, or artificial lakes with connection to the storm water system to be built.' The MWRA states that the underlying intent of the RMP is to swiftly and effectively remove contaminated stormwater from the reservoir catchment before it has any opportunity to either flow into reservoir or into the groundwater system.
Mr Glover's and Dr Denison's evidence is consistent. Given that the listed preventative measures in the RMP have been addressed by the applicant including the provision of a dry detention basin, we consider that the applicant has met this aspect of the decision guidelines.

[74]

The information and details of the proposal and other relevant material is provided across a number of documents which form part of the application or was otherwise provided during the course of the proceeding. Although collectively that material may be sufficient to persuade us that a permit could be granted, the failure to provide it in a consolidated comprehensive and integrated form, which can be referenced with ease and confidence means that we cannot be satisfied that the outcome put to us by the applicant and their experts will be achieved.
In relation to the application requirements set out in paragraph 34, Melbourne Water submitted:
- The subdivision masterplan shows the indicative location of the interim bund at a conceptual level, however the application has not provided sufficient detail related to protective measures and/or that the proposed protective measures are not sufficient.
- Construction plans for the drainage systems to be employed have not been supplied. Neither have plans and details outlining proposed sewerage reticulation.
- The applicant has not provided a written response as to how the proposal responses to the RMP, and in turn, Melbourne Water considers that the proposal has not satisfactorily met the RMP, particularly with reference to the management/ownership of the land.
- The only plans related to the protection measures provide conceptual details.
- Design plans, establishment details, maintenance details have not been provided. The applicant seeks to maintain the protective mechanisms in private ownership. That arrangement is not supported by Melbourne Water.
- The flow paths have been demonstrated for the original subdivisional layout in the Stormwater Management Strategy, however not for the revised staged layout.
We agree with Melbourne Water's submissions in this regard. The differences in the subdivision masterplan and interim bund concept design in the Surface/Stormwater Management Strategy by Alluvium Consulting Australia Pty Ltd are not sufficiently resolved.
The Alluvium concept design shows a geometric design with contours and chainages, with the design line being the downslope crest. The subdivision masterplan shown in Figure 3 simply shows an alignment with a light blue line without any reduced level (RL) information. The alignment seemingly follows the Alluvium concept design line for interim Bund C east of the detention basin. The Alluvium concept design shows a slight 'dogleg' between chainages 600 and 825, whereas the subdivision masterplan doesn't. Importantly, the Alluvium concept plan is not explicitly referenced in the proposed conditions.
Due to the changes in crest height discussed in paragraphs 65 to 67, the Alluvium concept design does not represent the 1 in 1,000,000 AEP, one hour storm duration with near-term climate change with a 600mm freeboard in any case.
The subdivision masterplan does not show the proposed retarding basin extent, as shown on the Alluvium concept design.
While some of the information required as part of the Catchment Protection Plan is provided throughout the documentation, it is not readily identified or referenced as would be necessary to provide certainty in permit conditions. The absence of a consolidated Catchment Protection Plan is significant. The applicant's table provided in Appendix B demonstrates the disparate nature of the information and the consequential uncertainty that arises in respect of the proposal. We further observe that the table refers to both original and amended versions of documents, resulting in a lack of clarity in respect of precisely what content of each is being relied upon. All this is in addition to the conceptual nature of the proposed preventative measures, as noted by Melbourne Water.
We are not persuaded that resolution of important details such as the level of design for the interim bund arrangement on the subdivision masterplan, the interim bund crest height and retarding basin low permeability lining details is appropriately left to permit conditions.
Clarity and certainty must be provided before a decision is made to grant a permit. A generalised permit condition requiring details to be to provided by the applicant, and to Melbourne Water's satisfaction, without any reference to material which forms part of the application and has been presented during the course of the proceeding does not give us confidence that the outcome we have been advised by the applicant will occur is, in fact, what will eventuate.
A substantial difficulty in including sufficient detail in a permit condition is the varied and disparate nature of the documents across which the presented information is spread. Adding to this is the absence of any detail beyond a conceptual stage and of any information altogether, such as construction plans for the drainage systems to be employed, of proposed sewerage reticulation and required drainage control mechanisms. Key technical documents such as Venant Solutions document LM00490.001 dated 18 October 2024, Venant Solutions document LM00490.001 (filename L.M00490.002) dated 21 October 2024 and Tonkin and Taylor Aitken Hill Embankment Geotechnical Stability Assessment 1019744.3000-ENG-RPT-003 v4 dated July 2024 have not been referenced in the proposed permit conditions.
On balance, whilst the application has taken guidance from the RMP as required by ESO9 and addressed the preventative measures to control the identified risks in general, the lack of detailed plans and corresponding conditions which refer to relevant information or material does not give confidence that the desired outcomes will be achieved.
For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[76]

Melbourne Water Corporation (MWC) is a determining referral authority for this application under Clause 66.01 Subdivision referrals and Clause 66.04 Referral of permit applications under local provisions of the Hume Planning Scheme; as the proposal relates to the subdivision of land and is located within the Environmental Significance Overlay (Schedule 9).
MWC refers to and relies on its objection by letter dated 8 May 2023, and in part repeats and adds to it below.
The proposal fails to acceptably address the significant effects the development may have on the environment and is contrary to the objective and strategies of Clause 14.02-1S Catchment planning and management of the Hume Planning Scheme (the Scheme), as it does not:
1. Assist the protection and restoration of catchments, waterways, water bodies, and groundwater;
2. Ensure the continued availability of clean, high quality drinking water by protecting water catchments and water supply facilities;
3. Suitably consider the impacts of catchment management on downstream water quality;
4. Provide appropriate measures to filter sediment and wastes prior to its discharge into the waterways;
5. Maintain the intended planning co-ordination, with the activities of catchment management authorities (i.e.: Greenvale Reservoir planned protection measures by MWC);
6. Ensure that water quality infrastructure is designed to minimise risk of harm to surface waters and groundwater; and
7. Align with the Greenvale Reservoir Catchment Drinking Water Quality Risk Management Plan (6 March 2008) (RMP). Specifically, there are a range of 'preventative measures' within the RMP (see Appendix D) that are required to be met for increased urbanisation to occur, which includes matters related to: the design of the bund; fencing and signage; that bunds can be inspected by Melbourne Water; that bunds are to be located in public ownership, ensuring that Melbourne Water has rights and access to the bund or be located in a Melbourne Water reserve; that sewer joints and pits are sealed, and that no recreational and/or community ponds, wetlands, retarding basins or artificial lakes with connection to the stormwater quality system are to be built.
8. Further, that the partial, interim asset is proposed to remain under the ownership and control of the permit applicant is a further risk, as the final, permanent bund will be in MWC's ownership and control. The proposed partial interim bund and the planned, permanent bund will, therefore, not be in common, public ownership.
The proposal is contrary to the objective and strategies of Clause 14.02-2S Water Quality of the Scheme and does not acceptably:
1. Protect water quality, and
2. Protect reservoirs, water mains and local storage facilities from potential contamination.
The proposal does not ensure that development within the Greenvale Reservoir catchment area is compatible with the protection of the reservoir and does not provide for the integration of protection measures.
There are unacceptable risk and failure scenarios associated with the proposed interim drainage mitigation assets.
The partial interim bund may reduce the likelihood of contaminated stormwater flowing into Greenvale Reservoir from 'likely' without additional controls, to 'unlikely'. However, the proposed partial interim bund has additional potential risk or failure scenarios, relative to the complete, permanent protection works to be provided by MWC, and the effectiveness of the controls for those risk or failure scenarios cannot be guaranteed.
A drinking water quality risk assessment undertaken by MWC using the methods described in MW's risk management procedure concluded as follows:

[79]

Key risks or failure scenarios associated with the proposed interim retarding basin and bund works are as follows:
- Risk of failure and/or inadequate performance of the interim works leading to urbanised flows entering the Greenvale Reservoir;
- Disturbance of land and activity that extend outside the catchment area of the interim retarding basin and bund works; and
- Increased complexity and risk of building the final section of permanent bund with the interim bund and associated urban development in place.
The proposal is contrary to the purpose and decision guidelines of Clause 37.07 Urban Growth Zone and Schedule 12 to the UGZ of the Scheme, and the Craigieburn West Precinct Structure Plan, as it does not provide for suitable protective measures relevant to the Greenvale Reservoir Drinking Water Catchment and does not provide for stormwater management measures that meet the CSIRO Best Practice Environmental Management Guidelines for Urban Stormwater.
The Stormwater Management Strategy (Rev 2 by Alluvium dated 23 August 2022) that accompanied the application (as required under Clause 3.0 of Schedule 12 of Clause 37.07 Urban Growth Zone of the Scheme) proposes unacceptable interim/staged development outcomes that would result in risks to the Greenvale Reservoir Drinking Water Catchment, and the strategy is not to Melbourne Water's satisfaction.
The proposal is contrary to the purpose and decision guidelines of Clause 42.01 Environmental Significance Overlay and Schedule 9 to the ESO of the Scheme, as it does not:
1. Suitably and acceptably manage the impact of the development and subdivision on the Greenvale Reservoir with respect to drainage, water quality and runoff;
2. Consider the relationship between the proposal and any arrangements for achieving co-ordinated urban development in the locality;
3. Align with the current approved version of the Melbourne Water Greenvale Reservoir Catchment: Drinking Water Quality Risk Management Plan, and
4. Align with the need for the establishment of the proposed reservoir protection measures.
The proposal is contrary to Clause 53.18 Stormwater management in Urban Development of the Scheme as it does not meet best practice performance objectives for stormwater quality and does not prevent detrimental downstream impacts.
The proposal is contrary to Clause 56.07-4 Stormwater management objectives of the Scheme as it does not protect the environmental values and physical characteristics of receiving waters from degradation by stormwater and does not meet the current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999).
The proposal is contrary to Clause 56.08-1 Site management objectives of the Scheme, as it does not protect drainage infrastructure and receiving waters from sedimentation and contamination.
The proposal is contrary to the decision guidelines of Clause 65.02 Approval of an application to subdivide land of the Scheme, as it does not manage the effect of development on the use or development of other land which has a common means of drainage and is not supported by currently available downstream drainage and water services.
The proposal is premature. It was clearly contemplated in the planning process that led to the PSP that inter alia the subject land would not be able to be developed until external infrastructure is provided. The necessary infrastructure has not yet been developed and so that application is therefore premature and out of sequence.
The opportunity for increased urban development is reliant upon the establishment of preventative measures, including protective bunds.
This was made clear through the PSP development process and in the Standing Advisory Committee Report, in particular at pages 46 and 50-52.
The proposal is neither fair nor orderly, and the proposed interim stormwater drainage works will not perform to the same level of proficiency as the final, permanent works to be carried out by MWC.
It does not provide for the protection of natural and man-made resources, to secure a safe living environment, to protect public utilities and other assets, and to balance the present and future interests of all Victorians.
It is not appropriate to grant a conditional consent.

At a glance

Court

Decision date

Source

Judgment (138 paragraphs)

HBL Vic Pty Ltd v Hume CC [2025] VCAT 300 (9 May 2025)

Parties

Legislation Cited (6)