2. The Responsible Authority is directed to issue a permit for the use and development of a water bottling plant, ancillary works and vegetation removal at 1590 Little Yarra Road, Powelltown described in certificates of title volume 6856 folio 118, subject to the following conditions:

1. Prior to the commencement of the permitted use/development, an amended plan(s) shall be submitted for approval to the satisfaction of the Responsible Authority. The plans must be generally be in accordance with the plans submitted with the application but amended to show:

(a) Detailed building (including elevations), site and layout plans, at a scale of 1:100, showing the following:

* Further articulation in the building structure, including different textural qualities to the precast material such as blades as recommended by Christopher Dance in his evidence to the Tribunal in Application for Review No. P56412002 on the eastern and western walls. as indicated on the drawing he produced to the Tribunal;

* Re-location of the electricity sub-station to the rear of the building (including the provision of all supply lines underground);

* A lighting schedule of all external lighting within the site, including details of the number, location, height, light intensity and method of controlling light spillage;

* This schedule should also deal with the hours for which security lighting will be provided and whether there is to be phasing of that lighting to the times when it is required for staff security (during shift changeovers);

* Details of all site and security fencing, including height and materials.

* Inclusion of an external open space area (such as a small courtyard) for staff, including seating and shade/weather protection;

* The location and details of any external plant and equipment, oh the roof or outside the building. This includes detail of any condenser units or external air or other emissions vents;

* Details of how the EPA's performance requirements (as detailed in the "noise" condition of this permit) for specific noise emission are to be satisfied;

* Details of car parking providing at least 51 car spaces and egress/ingress arrangements from Little Yarra Road, generally in accordance with the evidence of Mr S Hunt presented to the Tribunal in Application for Review No. P5641 2002 and to the satisfaction of Roads Corporation and the Responsible Authority

* Revised details of the access roads within the property, to the rear of the water bottling plant, so that their formation width does not exceed 5 metres. (that is single lane) nor impede the free flow of water through the wetlands, and so that the minimum of remnant vegetation is disturbed.

When approved, the amended plan(s) shall be endorsed to form part of this permit.

(b) The layout of the water bottling plant, together with the specific noise emission details of the plant and equipment to be installed and an acoustic analysis showing how that plant and equipment satisfies the performance requirements of the Environment Protection Authority.

(c) A Management Plan for the Scented Paperbark vegetation community, and other remnant vegetation on the site, including the Dry Sclerophyll remnants, which addresses:

* The monitoring of the ground moisture level in the vicinity of the Scented Paperbark assemblage on the site, together with the provision of a system designed to maintain an acceptable moisture level;

* A weed control program (and actions for its implementation) within the Scented Paperbark area, particularly targeting Ragwort, Blackberry and English Ivy with non-harmful techniques given the sensitivity of the wetland ecosystem to chemical sprays (eg. Herbicides);

* The Owner undertaking or causing to be undertaken research into the environmental conditions required for the minimisation of the potential impacts to and long term viability of the Scented Paperbark assemblage. This research should include investigation of soil characteristics, the effects of groundwater extraction, reproductive strategies of the Scented Paperbark and the specific requirements and ecological tolerance of Scented Paperbark to changes in hydrology and the viability of rewatering program;

* The final design of any works (particularly new roads and the restoration of disused roads) in the vicinity of the Scented Paperbark assemblage to ensure minimal impact on the vegetation in that assemblage, including limiting access and taking measures to protect the assemblage from physical damage.

* Further review and modifications to the management plan to incorporate the conclusions of the research referred to above.

When approved the management plan(s) shall be endorsed to form part of this permit.

(d) A heritage management plan which protects against identified heritage items, including archaeological items, from being damaged or otherwise detrimentally affected during the construction phase and subsequently to ensure that any further unidentified items that might be at risk are identified and appropriately protected. The management plan to include the recommendations on page 43 under 10.3.1 of the Sinclair Knight Mew planning report titled "Planning Assessment for a proposed Springwater Bottling Plant September 2001".

When approved the heritage management plan shall be endorsed to form part of this permit.

(e) A revised and detailed landscape plan generally in accordance with the landscape plan prepared by Chris Dance in his evidence to the Tribunal in Application for Review No. P56412002, but showing:

* the number, location and species of all planting, including details of ground preparation, mulching, replacement planting and maintenance;

* incorporation of a second row of screen planting, setback from the Little Yarra Road (and offset from the first row) frontage, to eliminate direct views through the entry points to the truck parking area and building frontage.

* The planting and landscaping along the eastern boundary of the site modified to take account of the requirements of the owners of properties abutting the site on its eastern boundary to minimise overshadowing of their properties and less vulnerability to fire.

(f) The location of and access to all pipes, bores and pumps.

When approved such plan shall be endorsed to form part of this permit.

2. This permit shall lapse if the development hereby permitted is not commenced within two years or completed within two years of the date of the commencement provided that the Responsible Authority may extend either the date of commencement or completion.

3. Except with the prior written agreement of the Responsible Authority, the hours of operation shall be as follows;

* Water bottling plant: 24 hours per day during the hours 7.00am Monday to 10.00pm Saturday

* Trucks - loading/unloading and movements: (including movement and loading/unloading of containers) 6.00am to 6.00pm Monday to Friday and 6 .00 am to 6.00 pm Saturday, and no truck or forklift on the site shall start up or have any engine running on the site outside these hours.

4. The landscape works shown on the endorsed plans shall be carried out prior to the commencement of the uses authorised by this Permit. New planting shall maintained or replaced as necessary to the satisfaction of the Responsible Authority.

5. All sewerage and sullage waste from the proposed use and development must be discharged into an on-site septic tank system which is approved by the Environment Protection Authority, which retains all wastes and treated effluent within the boundaries of the land, and is located to the satisfaction of the Responsible Authority.

6. The external cladding of the building(s) including the roof shall be constructed of materials of muted colours to enhance the aesthetic amenity of the area. No external material having a highly reflective surface shall be used. For the purpose of this condition, "highly reflective" shall include unpainted aluminium, zinc alum or similar materials.

7. Prior to the commencement of the permitted development, samples and details of all external finishes and colours must be provided for approval by the Responsible Authority. Once approved, details of these finishes and colours shall form part of the permit.

8. Prior to the commencement of the uses permitted, the parking areas and vehicular accessways shown on the endorsed plan shall be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority.

9. All stormwater discharged from the subject land shall be conveyed by means of underground drains to a legal point of discharge or absorbed on-site to the satisfaction of the Responsible Authority. Discharge to the Learmonth Creek can only occur with the prior written approval of Melbourne Water.

10. All external lighting provided on the site must be in accordance with the lighting schedule endorsed under condition 1 (a), to the satisfaction of the Responsible Authority.

11. The uses permitted must not create a nuisance through the emission of noise from the site and must be operated so as to be in accordance with the Environment Protection Authority's Interim Guidelines for Control of Noise from Industry in Country Victoria -N3/89 - dated April 1989, and in any event must not exceed the levels prescribed in the following table when measured in accordance with the EPA's Guidelines at points recommended in those Guidelines:

12. The use of the permitted building shall not cause nuisance to persons on adjoining land by reason of electrical interference, vibration, noise, liquid waste, airborne pollutants or any other cause.

Odours offensive to the sense of human beings must not be discharged beyond the boundaries of the land to the satisfaction of the Responsible Authority.

An acoustic monitoring program is to be established and conducted to the satisfaction of the Responsible Authority. This monitoring program, which must include a report within 6 months of commencement of the bottling plant and thereafter every 12 months, must address the acoustic performance of the plant and the ancillary uses in the context of the noise conditions in this permit and the Environment Protection Authority's Interim Guidelines for Control of Noise from Industry in Country Victoria - N3/89 - dated April1989.

Such monitoring shall include the monitoring of noise caused by the uses authorised by this permit including noise from motor vehicles on the site. measured at the boundaries of the site with residential properties immediately abutting the site. Should the results of such monitoring demonstrate the noise limits described in condition 12 have been exceeded. acoustic fences or other measures to the satisfaction of the Responsible Authority must be constructed upon the direction of and within such time as is required by the Responsible Authority to reduce noise escaping from the site to within such limits.

13. No external sound amplification equipment, loud speaker, siren or other audible signalling device, other than required to meet occupational health and safety requirements, shall be installed or used on the land.

14. The areas of land not occupied as building shall be maintained in a clean and tidy condition to the satisfaction of the Responsible Authority.

15. Prior to the commencement of any works covered by this permit. engineering plans showing all works required by this permit in Little Yarra Road. car parking. driveways and drainage including detailed drainage computations and sediment/trash control strategy, shall be submitted to the satisfaction of the Responsible Authority for approval.

16. Prior to the commencement of the uses authorised by this permit:

(a) the road works in Little Yarra Road, vehicular accessways, vehicle crossings from Little Yarra Road to the site, driveways and parking areas providing for a minimum of 51car spaces shall be constructed in accordance with the endorsed plans to the satisfaction of the Responsible Authority. All works in Little Yarra Road and parking areas and vehicle accessways and crossings shall be fully constructed, sealed. drained and delineated.

(b) a barrier or mound between the eastern edge of the car park and the eastern boundary of the site shall be constructed so as to prevent direct light from headlights entering the properties adjoining the site to the east from cars using the car park. Such works shall be constructed when and within such location/s to the satisfaction of the Responsible Authority.

17. Prior to the approval of civil engineering construction plans showing all works in Little Yarra Road, car parking, vehicular accessways, and drainage, a checking fee of $500 shall be paid to the Responsible Authority.

18. The construction of all internal civil works, including car parking, vehicle accessways and drainage is to be inspected and approved by a suitably qualified civil engineer. Prior to the occupation of the permitted development, the engineer must provide a written certification that the works have been completed in accordance with the approved plans.

19. Prior to the approval of civil engineering construction plans a supervision fee to the value of 2.5% of the cost of the external works in Little Yarra Road shall be paid to the Responsible Authority.

20. The works required by this permit to be undertaken in Little Yarra Road are to be maintained in good condition and repair by the developer, for a period of three months from the date of practical completion, to the satisfaction of the Responsible Authority.

21. A maintenance bond to the value of 5% of the cost of the external works in Little Yarra Road or $1,000, whichever is greater, shall be submitted to the Responsible Authority upon practical completion of the works.

22. No construction or earth moving vehicles required for the works authorised by this permit shall be allowed by the owner of the site or any contractor or other person undertaking the works on the site to use Eucalyptus Road or Tea Tree Lane, to the satisfaction of the Responsible Authority.

23. No part of the spring water bottling factory building shall exceed 9 metres above natural ground level as measured prior to the commencement of the works.

24. The location of the electricity sub-station shall not be changed from the position shown on the endorsed plans without the consent of the Responsible Authority. The electricity sub-station, and any other plant or equipment likely to generate noise located outside the spring water bottling plant factory shall be constructed with walls of sufficient acoustic capacity to ensure compliance with the noise limits described in condition 12.

25. All pumps used for the extraction of spring water or otherwise on the site shall be electrically powered and their operation shall comply with the noise limits described in condition 12.

26. In the event of there being a requirement by Country Fire Authority, spring water being pumped to the spring water bottling plant factory shall be diverted to the fire hydrant and pump to be constructed at the north western corner of the property adjacent to its frontage with Little Yarra Road.

27. Water extraction from any of the bores must cease or be reduced to the satisfaction of the. Responsible Authority if directed by the Responsible Authority, should it become evident that any part of the Scented Paperbark wetlands habitat is being damaged from desiccation.

28. Construct and maintain a Building Protection Zone immediately surrounding the building where fine fuels are minimised to the extent that the passage of fire will be restricted, eg. short green lawns, paths, driveways, watered vegetable gardens, swimming pools, cultivated gardens, etc.

29. Construct and maintain a Fuel Modified Buffer Zone surrounding the Building Protection Zone where fine fuels are managed to:

* Reduce radiant heat on the building through the reduction of fire intensity, to a level where the building is unlikely to be ignited during the passage of wildfire;

* Eliminate direct flame contact on the building from an unmodified vegetation; and

* Reduce ember attached on the building by reducing the amount of potential fire brands.

This zone must be 50m wide in Area 1 which refers to land anti-clockwise from the north east to the south side of the building, and 25m in Area 2 which refers to land clockwise from the north-east to the south side of the building.

As an alternative to meet the standard conditions listed above the applicant may provide a detailed statement that demonstrates to CFA's satisfaction that all fire protection objectives as set out in clause 44.06 of the Wildfire Management Overlay are adequately met.

This statement should consider requirements for water supply, access, buildings and works, vegetation and any other relevant matter, and detail what will be done, when it will be done and how it will be maintained. If the applicant agrees to the standard condition detailed here there is no requirement to produce a Fire Risk Management Plan.

30. All vehicle access to the property shall be by forward movement, when entering and leaving the property,

31. Prior to the commencement of the use authorised by this permit, access to the site must be constructed generally in accordance with the evidence of Mr S Hunt presented to the Tribunal in Application for Review No. P5641 2002 and to the satisfaction of Roads Corporation and the Responsible Authority, without expense to either:

32. No polluted and/or sediment laden runoff is to be discharged directly or indirectly in Melbourne Water's drains or watercourses.

33. Separate application, direct to Melbourne Water, must be made for any new or modified storm water Connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that is not feasible to connect to the local drainage system.

34. The developer shall enter into and comply with a "water diversion" agreement with Melbourne Water, to reduce their current licence surface water entitlement from the existing 37ML to a total of 7ML.

35. Evidence of a "water diversion" agreement between the developer and Southern Rural Water, must be provided in writing to Melbourne Water, prior to construction. The agreement must ensure that no more than a 50ML increase in ground water extraction occurs, with total extraction not exceeding 150ML.

36. A 20m wide drainage easement, vested to Melbourne Water, must be created on the title to the site on the alignment as shown on plan reference . The waterway within the wetlands must be centrally located within the easement.

37. At least 21 days prior to construction, a Site Management Plan, detailing pollution and sediment control measures, must be submitted to Melbourne Water.

38. Litter traps shall be installed for the duration of construction. Such traps must have the capacity to remove all litter greater than 5mm in size from all flow up to and including a 1 in 6 month ARI flow.

39. The developer shall enter into and fund an agreed maintenance schedule for all litter traps until completion of construction. The agreement must be signed off by the relevant drainage authority.

40. Sediments capture from runoff is required during construction. Any sediment traps must capture at least 95% of all solids larger than 60mm from all flows, up to and including a 1 in 1 year ARI flow.

41. The proposed access track running south along the western boundary must be constructed at a standard that minimises vegetation loss and wetland destruction through this sensitive area.

42. Continuous monitoring of the hydrological regime affecting the Scented Paperbark vegetation community must be undertaken over the life of the project to enable adaptive management actions to be adopted to ensure the long term viability of the vegetation community to the satisfaction of the Responsible Authority. Monitored observations and records shall be kept by the operator and occupier of the site for a period of at least 5 years and shall be available to DNRE and the Responsible Authority as required from time to time.

43. No wastewater is to be discharged beyond the boundaries of the premises.

44. Odours offensive to the senses of human beings must not be discharged beyond the boundaries of the premises.

_____________________________ _____________________________

For the Applicant for Review: Mr M Naughton, Minter Ellison

Witnesses: Mr D Stanley, Scientist - Hydrogeologist

For the Responsible Authority: Mr C Taylor, Russell Kennedy

For the Respondent/Objectors: Mr W Hackett, Mr A Hoult, Mrs P Hackett on behalf of T Wells, Ms M Waspe, Ms C Allen, Mr M Willmott, Ms A Willmott

1. This is an application for review of the decision of the Responsible Authority dated 27 February 2002 to refuse an application for use and development of a springwater bottling plant at 1589 Little Yarra Road, Powelltown.

1. The proposed use and development is inconsistent with the local planning policies for rural areas and for the establishment of industrial and commercial uses within those areas.

2. The proposed use and development is contrary to the objectives of the Rural zone, through the introduction of an industrial use.

3. The proposed use will have an adverse impact on the residential amenity of the Powelltown township, through the :

* emission of unacceptable levels of noise and smell;

* the effects of increased traffic (particularly trucks) on the Little Yarra Road;

* the intrusive bulk of an industrial building on to the landscape of a rural township.

3. The subject site is located at the western end of the township of Powelltown on the southern side of Little Yarra Road. The land is rectangular in shape and runs north south. The total area of the land is approximately 10 hectares which can be divided visually into two sections, the front section being part of the valley floor of the Little Yarra River and its tributaries including the Learmonth Creek. This area is relatively clear pasture land and has been used for grazing for some time. A dwelling and cattle yards are located in this area towards the frontage of the site. The visual division of the land is at the point where an area of approximately 1700m² of wetlands traverses the site and beyond this area where the land rises steeply at the rear and abuts the State forest.

4. To the west of the site frontage is a single dwelling and behind also to the west is a Department of Natural Resources and Environment (DNRE) depot comprising a work yard and single storey building. To the east are the rear yards of five single storey dwellings. Further to the east is the Powelltown Sawmill and football oval. To the north directly opposite the site on the other side of Little Yarra Road is a public picnic ground.

5. It is proposed to construct a springwater bottling plant with ancillary facilities on approximately 2.3 hectares mostly in the front or northern half of the land. The building is to be approximately 30m in width, 124m in length, 9m in height and set back 50m from Little Yarra Road. The ancillary facilities include a 10m³ storage tank for caustic soda, a 20m³ sewerage treatment tank, an on-site substation, an on-site laboratory, mechanical works, offices and a maintenance workshop. It is also proposed to construct an area for parking 36 cars, as well as access roads and a 6 foot high chain mesh perimeter fence.

6. It is proposed to harvest springwater from four groundwater bores located on the land approximately 250m from the bottling plant. A licence to install and extract from the groundwater bores was granted by Southern Rural Water. The springwater is to be piped from the bores to the bottling plant for filtering and bottling. The bottling plant is proposed to operate 24 hours a day for 6 days a week with three shifts. All bottling and packaging is to occur within the building. External vehicular and truck movements are only to occur during daytime and evening. Access to the property is proposed to be via two entrances onto Little Yarra Road.

7. The subject land is located within the Rural zone pursuant to the Yarra Ranges Planning Scheme (Clause 35.01) and is also subject to the following Overlays: Significant Landscape Overlay (Clause 42.03), Wildfire Management Overlay (Clause 44.06), Environmental Significance Overlay (Clause 42.01) and the Erosion Management Overlay (Clause 44.01).

8. Pursuant to Clause 35.01-3 a permit is required for all buildings and works associated with a Section 2 use within the Rural zone. A permit is also required for buildings and works under the Significant Landscape Overlay and Wildfire Management Overlay. It is understood that only part of the land is subject to both the Environmental Significance Overlay and the Erosion Management Overlay and that with respect to the areas affected by these Overlays there is no proposed works to be undertaken.

9. The particular provisions contained in Clauses 52.06 (Car Parking), 52.07 (Loading Bay) and 53 ( Upper Yarra Valley and Dandenong Ranges Region) of the Planning Scheme are also required to be considered.

10. The following policy provisions contained in the Planning Scheme were referred to by all parties as being relevant to the consideration of this proposal. They are found in the Planning Scheme in the following areas:

Clauses 14 Settlement, 14.02-3 Geographic Strategies, 15 Environment,15.01 Protection of catchments, waterways and groundwater, 15.05 Noise Abatement, 17 Economic development, 17.03 Industry, 17.05 Agriculture, 19 Particular Uses and Development, 19.03 Design and built form;

Clauses 21 Municipal Strategic Statement (MSS), 21.03 the State and Regional Planning Context, 21.04 Doing Business in the Shire, 21.05 Townships Large and Small, Non-Urban Areas - Agriculture and Conservation Working Together, 21.07 Environment, and Clause 22 Local Policies at 22.03 Rural Areas, 22.05 Industrial Areas, 22.06 Tourism, 22.07 Timber Industry, 22.09 Fire Risk Management, 22.11 Development in Residential, Rural Living and Rural Areas and 22.12 Vegetation Protection.

11. At the commencement of the hearing Mr Naughton sought to amend the application for permit to include the owners of the land J, P and A Yoannidis. The Tribunal granted the amendment pursuant to Clause 64 Schedule 1 Victorian Civil and Administrative Tribunal Act 1998.

12. In reaching its decision in this matter the Tribunal has considered the oral and written submissions of all parties, the evidence of all witnesses both oral and written, photographs, plans and other documents tendered during the hearing by all parties, as well as conducting an inspection of the subject land and its surrounds.

13. The Tribunal considers the following questions are raised and require deliberation to enable a determination to be reached. They are:

* Whether a planning permit is required for the extraction of groundwater under the Yarra Ranges Planning Scheme?

* The characterisation of the proposed use and whether it is a non rural activity that can be appropriately located within the Rural zone under the Yarra Ranges Planning Scheme?

* Whether the amenity impacts of the proposal are such that there ought to be a refusal of the proposal?

14. The Tribunal will address each of these issues in turn.

Whether a planning permit is required for the extraction of groundwater under the Yarra Ranges Planning Scheme?

15. It was Mr Taylor's contention on behalf of the Responsible Authority that the extraction of groundwater from the land required a planning permit whereas Mr Naughton on behalf of the applicants submitted the extraction of groundwater did not require a planning permit. What did require a permit he submitted, was the laying of the bores to enable extraction of the groundwater to take place.

16. Mr Taylor submitted that the extraction of a natural resource (ground springwater) is a separate and distinct use and requires a permit under section 2 of the Rural zone being a use not in section 1 or 3 (Cascone & Vella v Whittlesea Shire Council 11 AATR 175). In this respect he submitted the extraction of the groundwater is not incidental to the section 1 use of agriculture.

17. Mr Taylor referred to the Western Australian Town Planning Appeal Tribunal's decision of Croft v City of Gosnells 19 SR (WA) 282 in which the Tribunal stated:

In our view the extraction of water for sale is neither "farming" itself, nor (if there is a distinction) is it "using the land for the purpose of farming", ... The fact that the proposed use involves components which are common to farming (in this case extraction of groundwater) is not enough to lead to the conclusion that land used for that purpose is being used for farming or for the purpose of farming".

18. Whilst at one point Mr Taylor submitted that the extraction of the groundwater was an integral part of the commercial use of the bottling of the water for sale, he later submitted that the extraction was a separate and distinct use that was not incidental to the bottling plant. The process of bottling he stated, could take place anywhere, and the desire of the applicant to bottle the water on the site is being driven by the requirements of the European Commission that water be bottled at the source.. He sought to distinguish the extraction of the water having different impacts on the area compared to the bottling plant itself which was industrial in nature.

19. It was his submission that the construction of the bores constituted works and the use fell within the definition of use within section 3 PE Act . It was his submission that the extent of the water extraction, which could have impacts on the local hydrology and the wetlands that traversed the land, supported his contention that a planning permit was required for extraction.

20. Mr Naughton however was not in agreement that the extraction of ground water or the pumping of the extracted water through stainless steel pipes is a use. He submitted that under the Water Act 1989 (WA) a licence is required for the extraction of groundwater. Section 51 W A deals with the taking and use of water. It was Mr Naughton's submission that the Tribunal should have little regard to the issue of sustainability for water extraction. He stated the Applicant currently holds a licence to extract 157 ML per year having previously held a licence to extract 137ML per year. An application for review had been brought in relation to the issue of the current licence under the W A and pursuant to section 305B W A the Tribunal in considering the application for review must take into account the planning scheme. In this respect he submitted there was clear legislative intent that issues affecting the extraction of water should be dealt with in a Water Licence application and not in a planning permit application. It was his submission that Section 70 and 77 W A relating to the construction of works and underground disposal required that other permits will still need to be obtained notwithstanding the issue of the licence under the Water Act.

21. Under the W A the Crown has the right to the use, flow and control of all water in a waterway and all groundwater. In this respect various Authorities are empowered to carry out any function under that Act. The application was referred to both Melbourne Water and Southern Rural Water. Melbourne Water has responsibility for surface water and the management of waterway health and the licensed diversion of water from waterways within the Yarra Basin. Southern Rural Water is responsible for groundwater regulation pursuant to the W A.

22. Pursuant to Section 51 W Act a person may apply to the Minister for the issue of a licence to take and use groundwater. The Minister may delegate such power (Section 306 W A). A person may also apply to the Minister or delegate for a licence to construct, alter or operate a bore ( Section 67 WA). As indicated by Mr Naughton Section 70 WA recognises that the issue of a licence under Section 67 WA does not remove the necessity to apply for any "authorisation of permission necessary under any other Acts". In this respect the Tribunal agrees with the parties that a permit is required for the carrying out of works with respect to the installation of the bore and the pipes.

23. The Tribunal considers that in relation to the extraction of groundwater there is no requirement for a planning permit under the planning scheme. There is specific legislation namely the W A that deals with water and in particular the extraction of groundwater. Because there is no reference within the planning scheme to the extraction of water this does not result in the need to treat extraction as a use that does require a permit. There is a specific authority and specific legislation which has been enacted by Parliament to deal with the taking and use of water and this is dealt with by way of a licence system. The Responsible Authority in relation to the planning scheme is not the responsible authority in relation to the consideration of issues associated with the taking and use of water under the W A.

The characterisation of the proposed use and whether it is a non rural activity that can be appropriately located within the Rural zone under the Yarra Ranges Planning Scheme?

24. Mr Taylor submitted the extraction and bottling of groundwater could not be classed as a rural industry or rural enterprise within the meaning of Clause 74 of the planning scheme but rather it could be described as an `industry' as defined within the planning scheme in that there were changes undertaken to the PET forms creating bottles, purifying of the water, filling of the bottles, capping, wrapping and loading of the bottles.

25. Mr Biacsi in his written evidence submitted the proposed use could not be characterised within a specific definition of the planning scheme although it had elements which are characteristic of "rural industry'. He described the use as the `sourcing, treatment, bottling and packaging of high quality spring water harvested from the site and would fall within the innominate section 2 `not a use in section 1 or 3' permit required.

26. Mr Naughton agreed that the development and works as outlined by Mr Taylor included construction of bores, construction of stainless steel pipes connecting the bores to the bottling plant and construction of the bottling plant and ancillary facilities.

27. The Tribunal would agree with both Mr Taylor and Mr Biacsi that the proposed use does not fall neatly within part of the definition within the planning scheme of `rural industry' which is defined as "Land used to: a) handle, treat, process, or pack agriculture produce" , although they submitted the proposal does have elements of an industry in that there is an element of processing. Industry is defined as "any process of manufacture". Agricultural production is also defined in Clause 72 of the planning scheme as "any form of primary production of renewable commodities. It does not include extractive industry, mining or timber production from native forests".

28. Mr Justice Ashley in the Cascone Case stated "It is wrong to approach the ascertainment of (the) purpose of (a) proposed use on the footing that it must fit within one or more of the uses defined in a scheme : at least that is so where there is provision for innominate uses in the scheme". He also stated that "where a purpose revealed very largely falls within a defined use, it should be taken to fall within the defined use". Whilst the Tribunal agrees to some extent with both Mr Taylor and Mr Biacsi that what is proposed does have certain elements within the defined uses of "rural industry" and "industry" the planning scheme actually contains a defined use which contains all of the elements of the proposal. It is the Tribunal's view that the use as described by Mr Biacsi could be described within the definition in the planning scheme of a `utility installation' being "land used: to collect, treat, transmit, store, or distribute water'. A utility installation also falls within section 2 permit required under the provisions of the Rural zone.

29. Although the use of the term `utility' can infer that this is a public instillation to be used as a public service such as for gas or electricity, the term `utility also has the meaning of something useful, having the capacity to satisfy a human want, the ability of a thing to satisfy the needs or gratify the desires of a majority, a useful thing. There is nothing within the definition in the planning scheme that indicates it should be strictly referred to only in terms of a public service. What is proposed is the collection treatment, storing and distributing of spring groundwater for sale to the public, a utility instillation.

30. The planning scheme envisages the collection of water within the defined use of a utility installation. The proposal amounts to the collection of water from the point where it is extracted from the ground and then piped to the bottling plant and this requires a planning permit in that it encompasses works required to be undertaken within the meaning of works as defined in Section 3 PE Act. As we have previously discussed however, but the right to extract the groundwater is a matter for the relevant Water Authority under the W A 1989 and not the responsible authority under the planning scheme.

31. If this proposal is therefore characterised as either a utility installation or as an innominate use involving the collection treatment, storing and distribution of spring groundwater, the question remains as to whether this is a non rural activity that can be appropriately located within this Rural zone in light of the policies referred to within the Yarra Ranges Planning Scheme?

32. Clause 22 .03 Rural Areas policy of the planning scheme acknowledges that some non-agricultural uses and rural industries which have a direct relationship with the farming activities and a demonstrated need to be located outside township areas may be permitted. The basis of the policy recognises that "it is important that the rural areas continue to be protected from indiscriminate subdivision and intrusion from commercial and residential activities to ensure that this significant resource is protected and enhanced over the longer term". Whilst it is also recognised that "there are some opportunities in rural areas to establish non agricultural uses such as tourist developments and rural industries that have a direct relationship with the farming activities and a demonstrated need to be located outside of township areas" the objectives of the policy indicate that industrial uses that would be more appropriately located in a township or urban area should not intrude into rural areas.

33. The subject land is located within an area described in the policy as a Broadacre Farming Area which comprises extensive cleared farmland in the valleys of the Yarra River and its main tributaries. The policy recognises that "there is considerable interest in establishing additional tourist facilities and other non- farming uses within these areas and land uses will need to be managed to avoid the establishment of activities that would conflict with agricultural activities". One of the objectives of the Broadacre Farming Areas is "to ensure that any non agricultural land uses which need to locate within the area, will not have a detrimental impact on the environment or amenity of the area and will not adversely impact on the carrying out of sustainable agricultural practices".

34. The Tribunal considers that the intent of the policy is that a commercial or industrial use ought only be established in a Rural zone if it is directly associated with an agricultural activity being conducted on land. In this respect the Tribunal considers that the reference to agricultural activity could encompass the concept of extracting spring groundwater from its source. In this respect the reference in the planning scheme to agricultural production as being any form of primary production of renewable commodities could encompass the using of a natural resource that is found specifically on this land.

35. The Tribunal also accepts that although the springwater could be transported for bottling at another location, this would not meet the stringent requirements of the directive of the Council of European Economic Community that to be able to market bottled water as being springwater in any country within the EEC or recognising the EEC, the water must be bottled at source, and as such the applicant's desire to bottle the water at the source is understood and acknowledged. The Tribunal does not think however, that this reason is sufficient in itself to justify the grant of a permit for a proposal which would otherwise be inappropriate or which did not achieve acceptable outcomes under the planning scheme. In this case however, the Tribunal agrees with Mr Biacsi that the proposal does promote economic development by facilitating a use and development that is closely linked to and compatible with the land upon which the activity is to be conducted and is not an indiscriminate industrial development that is not in anyway related to the land.

36. The Tribunal recognises that the proposal is likely to have a `net community benefit' in that it will bring to a township with its previous timber and saw milling industry in decline a replacement industry that will result in significant employment opportunities during the construction period as well as ongoing positions within the bottling plant which is likely to have some significant flow on effects to local businesses.

37. The Tribunal's findings that the proposal is consistent with the applicable policy framework have also been influenced by our conclusion that the site is located at the edge of the Powelltown township and is partly incorporated into the township. In this respect the Tribunal agrees with Mr Biacsi that the area exhibits the qualities of a rural township in that it is located on the main road and the surrounding uses (residential and the DNRE depot) are not rural in nature, We are also of the view that the land is unlikely to be suitable for sustainable agricultural use within terms of Broadacre farming because it is affected by a significant area of wetlands and rises steeply at the rear, and the balance of the land is of insufficient area to sustain a viable agricultural use. . The land is also well located to make use of existing infrastructure to service the site.

38. Having formed the view that the proposed use is suitable to the site in terms of the applicable policy framework and the provisions of the zone, it is necessary to assess what if any impacts will result from this proposal, whether these are sufficient to result in this proposal being refused or whether they are capable of being managed by way of permit conditions. .

39. The residents of the properties adjoining the site raised the issue of what they regarded as the excessive height of the building and the associated adverse visual impact of the building. It was submitted that if the proposal was approved it would be desirable to reduce the effect of visual bulk by reducing the height from the proposed 9m to 7.5m. The Tribunal accepts however that a reduction in the height of the building would compromise the functioning and management of the use and that the height of the building is required to remain at 9m to enable the incorporation of an internal gantry crane to facilitate the placement of heavy equipment and machinery used in the bottling process. The Tribunal is also of the view that concerns about the visual impact of the building can be dealt with by other means, which we discuss subsequently.

40. The Tribunal acknowledges the bottling plant building is a substantial structure that will intrude into the existing landscape particularly of the properties immediately to the east, north and west. The recommendations of Mr Dance as to the planting of trees to assist in the screening of the building when viewed from the rear of these dwellings is an important factor in our considerations as to how the visual impact of the building can be contained within acceptable levels. In this respect we agree with Mr Dance that appropriate planting can be a very effective means by which to soften or filter views of an otherwise dominant physical structure. The area and configuration of the site is also relevant to our considerations. Because the site is large and because the building will be setback substantial distances from boundaries, the opportunity exists to create effective landscape buffers between the building and abutting uses.

41. The Tribunal also accepts the recommendations of Mr Biacsi and Mr Dance that additional articulation on the east and west elevations of the building will assist in breaking up the perception of the extent of these long elevations.

42. The Tribunal is of the view that the building will not impact on the visual entry into the township of Powelltown or on the main road, it being setback approximately 50m from the road and is to be substantially screened by Mr Dance's landscape treatment incorporating regional forest species comprising Beech and Sassafras trees in a grid pattern. As a result the building may be viewed from various points outside the site but will be so viewed in the context of other nearby buildings, set within a screen of planting and not as a stand alone feature within the existing cleared rural landscape.

43. The rural character of the area is referred to in the Significant Landscape Overlay as comprising "....a broad pastoral landscape which is enclosed by forested hills which narrows into an area of tall mountain forests". One of the objectives of the Significant Landscape Overlay requires "that any new development is located and designed to avoid inappropriate visual intrusion or other detrimental effects on the key characteristics of the identified landscape".

44. In this location there are other buildings, although of a lower height, but it is considered that this building will be viewed upon entry to the township through a visual screen of planting as well as the backdrop of the higher structures of the existing sawmill. The building will also sit forward of the landscape element of the forested hills which will still be seen as a visual backdrop.

45. In Ms Hui's view any noise emanating from the building as a result of the bottling process could be effectively mitigated by the use of internal insulation. Mr Smith indicated that there were stringent controls in relation to noise within the food industry which will be applicable to this bottling plant . He indicated that there was some equipment that would be extremely noisy and as a result it was appropriate to locate such equipment in a specially enclosed area. Both witnesses concluded that compliance with N3/89 Interim Guidelines for control of noise from Industry in country Victoria, and the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 could be achieved.

46. The main concerns expressed in relation to noise was the likely impact of truck and other vehicle movements in and out of the site particularly in the evening and night time period. This was particularly highlighted in relation to car movements as a result of the intended use of three shifts of workers to continue the 24 hour operation of the bottling plant resulting in vehicles leaving the site at approximately 10.00pm or 11pm depending on the commencement time of the shifts.

47. Mr Smith advised that the operation of delivery trucks should not be significant outside the hours of 7.00am to 5.00pm, and it was his view that given the low ambient noise level the EPA night time noise levels would be unlikely to be achieved unless there was minimal truck movements in the evening period. Truck movements would therefore need to be restricted in the evening period.

48. Mr Naughton provided the Tribunal with an indicative plan that showed the electricity sub-station relocated from near the western boundary to 1580 Little Yarra Road to the rear south wall of the building. The plan also provided for additional truck parking inside the building to enable increased overnight storage and thereby reduce the hours of operation of the trucks on the site. In our view these changes to the site layout will make a contribution to managing the off site amenity impacts of the use.

49. On the basis of the relocated truck and vehicle parking areas, and in the context of limited truck movements in the evenings, it was Ms Hui's recommendation that provision be made for acoustic fencing where residential uses abut the site, and that the impacts be monitored to determine whether such fencing is required to be constructed. The Tribunal regards this as a reasonable recommendation and conditions to that effect have been included in the order.

50. The issue of noise during the construction phase was also raised. There is no limits placed on construction by the EPA if the construction period is less than 18 months.

51. It was Mr Hunt's submission that the proposal should include 51 parking spaces not the 36 as indicated in the application. Given that the bottling plant is to employ 31 staff during the day, 12 staff during the afternoon/evening and 10 staff overnight as well as the likelihood that truck drivers of the potential 8 trucks to be used from the site may park their cars at the site and the need for some visitor parking, it was his view that to cover the shift changeover periods and parking for truck drivers and visitors, 51 spaces would be more appropriate. In this respect Mr Naughton advised that the indicative plan that he referred to the Tribunal showed that the additional car spaces recommended by Mr Hunt could be accommodated in the area shown previously for the parking of vehicles close to the eastern boundary. This plan showed the rearrangement of the car park to accommodate Mr Hunt's recommendations and included a bus parking area and improved entry and exit into this area.

52. The relocation of the car park to the eastern side generates a need for a landscaped buffer to be provided between the car park and the abutting property and we have included a condition to give effect to that requirement.

53. Concerns were raised regarding the impact truck movements would have on Little Yarra Road and the truck movements in and out of the site. It was Mr Hunt's view that Little Yarra Road is a declared main road and can accommodate up to 15,000 vehicles per day. At present Little Yarra Road, adjacent to the site, carries in the order of 800 vehicles per day including 90 truck movements. He anticipated that the proposed development would generate a maximum of 178 vehicle movements per day and 57 movements per peak hour of which 48 movements per day and 16 movements per peak hour would be truck trips. Future daily traffic volumes would be expected to increase to between 830 and 950 trips. per day. The additional traffic therefore generated by this proposal would have no material impact on the capacity or operation of the road.

54. Mr Hunt referred to the application plan which showed what he termed a Type C right turn treatment for entry into the site taken from the NAASRA Guide to Traffic Engineering Practice Part 5, Intersections at Grade treatment for Rural turning lanes. It was his view that this type of treatment was far and beyond what was required in this location given the level of traffic in Little Yarra Road and the amount of traffic anticipated turning into and out of the site.

55. It was his view that a Type A treatment was more appropriate and would also accommodate the anticipated future traffic volumes. He also concluded that this treatment would still enable the school bus to turn in the picnic area as it currently does. It was also his view that there was sufficient sight lines for traffic to see trucks turning into the site and slowing to turn giving traffic an appropriate time to slow down in this 60kph area. It was also Mr Hunt's view that trucks leaving the site particularly between 8.00am and 9.00am would not result in any safety issues or conflict with school bus traffic in the area. It was Mr Hunt's evidence that even if some sections of Little Yarra Road did require some maintenance the road was in good condition and of a high standard.

56. The Tribunal accepts Mr Hunt's evidence and his recommendations that a Type A only right turning treatment be required, that the number of car spaces be increased to 51 and that a bus parking area be included.

57. A number of issues were raised by the objectors and in part by the Responsible Authority in relation to the amount of groundwater to be extracted from the site and the likely impacts this could have on the flow of the Learmonth Creek and on the remnant stand of vegetation within the site particularly the Scented Paperbark remnant, recognised as being of regional significance. The Tribunal as stated previously does not consider that the issues of the amount of water to be extracted and the likely effect of the extraction are matters relevant to or within this Tribunal's discretion of consideration. The relevant Water Authorities are the appropriate bodies to consider such issues at the time of an application for the required licence under the Water Act 1989. With regard to possible impact on the remnant vegetation the Tribunal considers that proper management of vegetation on the site should be required to ensure that the proposal does not impact on the remnant vegetation. Submissions in this respect were not disputed by the applicant and we were presented with evidence demonstrating that the applicant had undertaken extensive research into the impact of the proposal on the remnant vegetation and is committed to implementing a rigorous research, monitoring and management regime designed to protect that vegetation. We are satisfied that with the imposition of appropriate permit conditions, the remnant vegetation on the site is capable of being adequately protected

58. With respect to permit conditions, Mr Taylor distributed a set of comprehensive conditions which formed the basis of submissions received from the parties. It is not necessary for us detail our response to those submissions however the conditions we have included follow logically from our findings and incorporate requirements for amendments to plans and operational matters which we consider to be necessary for the impacts of this use and development to be contained within acceptable limits.

59. The Tribunal considers that the site is located on the fringe of the Powelltown township and can be incorporated appropriately within the area, notwithstanding its Rural zoning. While the building structure is large and will intrude to some extent into the existing landscape this will be viewed in the context of the site's relationship with the township. Amenity impacts on nearby residential properties will in our view, be contained within acceptable limits and are capable of being appropriately managed by conditions which require the noise of the plant operation to be contained within the building and truck movements to be restricted in the evening period. We are also satisfied that Little Yarra Road is capable of accommodating additional traffic movements generated by the proposal.

60. For the above reasons the Tribunal allows the application for review and will direct a permit issue subject to conditions.

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