1 In application P1937/2020, the decision of the responsible authority is affirmed.

2 In planning permit application PA1944771, no permit is granted.

Mr A Gelber, lawyer, HWL Ebsworth. He called the following persons to present expert evidence:

• Dr I Thomas, chemical and environmental risk engineer.
• Mr D Hancox, traffic engineer.

Mr A Woods of counsel, instructed by Mr S D'Arcy, WorkSafe Victoria.

Use of the land for an indoor recreation facility (gym). The gym would have up to two full-time equivalent staff, a maximum of 30 patrons in the premises at one time, and a maximum class limit of 20 persons. Only one fitness class would occur at any time. Hours of operation would be from 5.30am to 9.00pm on weekdays and 7.00am - 2.00pm on Saturdays (84.5 hours per employee). Three signs are proposed.

Application under section 77 of the Planning and Environment Act 1987 - to review the decision to refuse to grant a permit.

Clause 37.01-1 Special Use Zone, Schedule 4 - Altona Special Industrial Zone [SUZ4].[1]

Clause 37.01-1 to use the land for leisure and recreation (indoor recreation). Clause 37.01-5 to use the land where the proposed number of working hours per employee per week exceeds the specified maximum for PD10 (employee population density controls). Clause 52.05 to display business signage.

Clauses 11, 13, 15, 17, 21, 22.02, 22.11, 37.01, 52.05, 52.06, 65 and 71.

The subject land is one (Unit 1) of 10 warehouse units constructed under planning permit PA1532665. The units share a car park with 85 spaces. Several units are currently occupied, with vacancies.[4]

1 Mr Lobianco seeks planning approval to use the subject land for a gym.

The subject land is proximate to Olefins, one of three chemical plants operated by Qenos Pty Ltd. Olefins manufactures ethylene and propylene. The other two chemical plants are known as 'Plastics' and 'Resins'. The three chemical plants are collectively registered as a single major hazard facility [MHF].[6] They are substantial production facilities for petrochemicals and plastics. They are located in the Special Use Zone, Schedule 3 Petrochemical Complex Area [SUZ3], on the north side of the Melbourne-Geelong Railway Line. The relationship with the subject land can be appreciated in the Nearmap image below.

3 The Council refused permit application PA1944771 on five grounds that focus on the proposal's response to the purpose of SUZ4 and relevant policies. The Council relies on these and the advice of WorkSafe, whose views it sought in processing the permit application.[7] A sixth ground of refusal relates to impacts on the availability of car parking for other tenancies on site. The Council does not oppose the proposed signage.

4 The applicant rebuts the Council's grounds. It relies on expert evidence in support of its position, broadly summarised as:[8]

• the proposal is consistent with the SUZ4;
• the proposal will not prejudice the continued operation and expansion of the Altona petrochemical industry; and
• the proposal appropriately addresses issues associated with car parking and traffic.

• Is the proposed land use acceptable when assessed under clause 37.01, SUZ4 and relevant policy?
• Are the proposed car parking arrangements appropriate?

6 The Tribunal must determine whether the permit application will produce an acceptable outcome having regard to the relevant policies and provisions in the scheme. Clause 71.02-3 requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

7 The parties agree that the proposal exceeds the employee population density control in SUZ4.

8 The parties disagree whether the outcome is acceptable. Particularly, they disagree as to whether the proposed use is consistent with scheme policy for MHFs and the protection of industrial land in a "Core Industrial Area", whether it satisfies the purpose of SUZ4, and whether it would prejudice the continued operation and expansion of the Altona petrochemical industry as an identified MHF. Further, the parties disagree as to whether approval of the permit application would set a precedent, or a poor precedent, for the use of other warehouses and sites.

9 The applicant argues that the Tribunal should reject WorkSafe's and Council's submissions that the proposal is either fundamentally inconsistent with the purposes of the SUZ4, or represents some form of incremental threat to the petrochemical industry. In the applicant's submission, a more balanced approach is required having regard to the approved uses in the area, the relative intensity of those uses compared with the proposal, and the appropriate risk mitigation strategies which can readily be employed in relation to the subject land.

10 The applicant relies on Dr Thomas' expert evidence and risk assessment. It emphasises that there is no competing evidence before the Tribunal and, as such, the Tribunal should afford Dr Thomas' evidence substantial weight.

11 Dr Thomas prepared a statement of evidence and a supplementary statement. The later evidence was filed by the applicant on 26 July 2021 "having regard to WorkSafe's reliance on the Position Paper" [Position Paper[9]] as part of WorkSafe's pre-filed written submission. Dr Thomas' second evidence statement addresses the Position Paper and includes opinions about submissions filed by parties. As he stated at the hearing, Dr Thomas articulates his long-standing concerns about the approach taken by WorkSafe in nominating the extent of risk areas around a MHF.

12 In 2018, Amendment VC152 introduced new objectives and strategies for major hazard facilities [MHFs] in clause 13.07 (Amenity). The explanatory report explains why the Amendment is required including:

The Victorian Government response to the Major Hazard Facilities Advisory Committee Recommendations Report (Government Response) outlined seven actions to address major hazard facility buffers, general industry buffers and pipelines.

Amendment VC152 delivers on Actions 1 and 3 of the Government Response to establish planning policy for the management of land for major hazard facilities and their respective buffer distances.

13 VC152 implements the objectives of planning in Victoria (among others):

Amendment VC152 extends the application of existing Clause 13.07 (Amenity) of the PPF to recognise the importance of major hazard facilities and surrounding land management in planning policy.

14 Now numbered clause 13.07-2S "Major hazard facilities", the objective is:

To minimise the potential for human and property exposure to risk from incidents that may occur at a major hazard facility and to ensure the ongoing viability of major hazard facilities.

• Ensure major hazard facilities are sited, designed and operated to minimise risk to surrounding communities and the environment.
• Consider the risks associated with increasing the intensity of use and development within the threshold distance of an existing major hazard facility.
• Apply appropriate threshold distances from sensitive land uses for new major hazard facilities and between major hazard facilities.
• Protect registered or licenced major hazard facilities as defined under Regulation 5 of the Occupational Health and Safety Regulations 2017 from encroachment of sensitive land uses.

16 It is not controversial in this case that the Altona Petrochemical complex MHF is of State significance. Clause 21.08 refers to Hobsons Bay as being at the "forefront of Melbourne's industrial base" and the "focal point of Victoria's petroleum, chemical and manufacturing industries, including some of the State's largest and most significant industrial enterprises".

17 Policy objectives include to stimulate and facilitate appropriate industrial activity and employment opportunities. Strategies include to support the growth and development of industrial development in Core and Secondary Industrial Areas, and to protect Core and Secondary Industrial Areas from the impacts of encroachment of residential and other sensitive land uses.

18 The subject land is in a "Core industrial Area" based on clause 21.08:

19 "Policy Guidance (criteria for the exercise of discretion)" is to use local policy at clause 22.02 to facilitate appropriate industrial activity and quality industrial development in Hobsons Bay. Clause 22.02 applies to industry including SUZ4. Its objectives include:

To facilitate appropriate industrial activity and employment opportunities within the municipality.

To ensure that land use and development in the vicinity of core and secondary industrial areas does not adversely affect the viability of established industry within the area.

20 With respect to the application of zones, clause 21.08 states:

Apply the Special Use Zone 3 to provide for the operation and expansion of the petrochemical industry in a manner that does not affect the safety and amenity of nearby areas and minimises exposure to risk of persons working or visiting the area.

Apply the Special Use Zone 4 to provide for a range of industrial uses and services that do not prejudice the operation and expansion of the petrochemical industry and minimises exposure to risk of persons working in or visiting the area and provides for manufacturing industry, storage and distribution of goods and associated uses which does not affect the safety and amenity of local communities.

To provide for a range of industrial uses and services that do not prejudice the operation and expansion of the petrochemical industry.

To provide for the minimisation of exposure to risk to health or life of persons working in or visiting the area.

To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.

To provide for a high standard of building design and landscaping to reflect the prominent location and high visual profile of the land.

The proposed use requires a permit with decision guidelines including:

• The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
• The effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities.
• The effect that nearby industries may have on the proposed use.
• The views of the Ministers administering the Dangerous Goods Act 1985 and the Occupational Health and Safety Act 1985 about the risk to persons in nearby residential and industrial areas.
• Any measures to protect the health and safety of persons on the land or on land nearby.
• Whether the use or development would prejudice the continued operation and expansion of the Altona petrochemical industry.

23 SUZ4 operates with employee population density provisions.

24 The employee population density guideline, at clause 5.0 of SUZ4, has permit requirements. Employee density is controlled by reference to the map entitled Altona Employee Population Density Controls. For the purpose of this clause, one employee is equivalent to a person spending 44 hours on the site in any week.

25 A permit is required (among others) for the use of land designated on the map with a PD description unless the number of persons employed on the land (calculated on a lot by lot basis) does not exceed that calculated using the ratios in the following table. The subject land is in PD10:

26 The parties agree that a permit is required under this clause. A permit is required because the proposed number of working hours per employee of 84.5 hours per week exceeds the permitted 44 hours provided for in the definition of an employee.[10]

27 Relevant to this proceeding, the decision guidelines are the same as listed at paragraph 22 above for the use of the land.

28 Other relevant clauses are listed in the 'Information' section of these reasons.

29 WorkSafe's submission relies on its Position Paper to identify the Inner and Outer Planning Advisory Areas [IPAA and OPAA] for the Qenos MHF. Mr Woods states the Position Paper is used by WorkSafe where no land use planning advisory maps exist for a MHF.

30 The Position Paper is an internal document that Mr Woods states will become an external, public, document "shortly", likely with some modifications. The Paper is dated 2019 is described under the heading of "Refinement of existing WSV guidance" founded in the 2010 "Land use planning near a major hazard facility". The 2010 document defines the extent of risk areas around a MHF as planning advisory areas:

Inner planning advisory area - the individual risk of fatality from potential foreseeable incidents is greater than or equal to 1x10-7 per year (a one in 10 million chance per year).

Outer planning advisory area - the consequence of a credible incident is not likely to cause a fatality but persons present may suffer some adverse effects or have difficulty responding to an emergency that may result in injury or harm.

31 The Position Paper explains that the "dimensions of the advisory areas are neither easily determined nor entirely objective, in 2015 WSV made considerable efforts to publish maps relating to the MHF operating at the time". One map was published; although the Paper states other maps are released "as-needed, eg. VCAT proceedings".

32 WorkSafe refers to Table 2 that identifies a MHF category, precautionary MHF buffer and development restriction zone. In this instance, with a highly flammable MHF category for Olefins, WorkSafe submits the precautionary MHF buffer zone dimension is 300 metres and development restriction zone dimension is 1000 metres.

33 In addition to Dr Thomas' comments about the Position Paper and his opinion about WorkSafe's deficiencies and flawed approach, Mr Gelber and Dr Thomas are highly critical of the Position Paper given its draft and untested status, the fact that it is not public and because it contains references that are not accessible. Mr Gelber submits the Position Paper has not been applied elsewhere. He submits the Position Paper should carry no weight. Further, he submits WorkSafe's position is unlawful as the internal document does not represent the views of the Minister administering the Occupational Health and Safety Act 1985 [OHSA] and has not been prepared under the Guidelines provisions of section 13 of the OHSA. Mr Gelber contends the Tribunal should not rely on section 98 of the Victorian Civil and Administrative Tribunal Act 1998 in giving weight

to the Position Paper and to do so would "subvert the clear legislative intention" of the OHSA.

Mr Gelber has not raised a specific question of law for determination.

35 The Council states that WorkSafe oversees the operation of the Occupational Health and Safety Act 1985, the Occupational Health and Safety Act 2004 and the Dangerous Goods Act 1985.

36 The Position Paper does not purport to be Guidelines made under section 13 of the OHSA, either on my reading or in WorkSafe's submissions. The applicant has not provided any persuasive submission that the views of the relevant Minister to be sought under the decision guidelines of SUZ4 must be only based on Guidelines made under section 13 of the OHSA.

37 The WorkSafe approach and use of IPAA and OPAA was discussed in the Major Hazard Facilities Advisory Committee final report[11] to which I have been referred through Dr Thomas' evidence. Further work has been undertaken since that time by WorkSafe, as Mr Woods explains. I accept that WorkSafe has specific expertise and the Position Paper is said to reflect its current assessment approach. However, the draft Position Paper and the distances in it are not able to be tested through any expert evidence called by the authority in this proceeding. The distances are greater than applied through earlier documents, such as the 1987 Quantified Risk Assessment [QRA] report. This must affect whether and how any weight is attributed to the IPAA and OPAA.

38 I do not give weight to Dr Thomas' comments about the ramifications of the 1000 metre measure or that applying a 1000 metre buffer "would warrant consideration to remove some 600 residences, a school and even a police station which was opened in 2020". Ultimately, if there is a public document that is implemented or given effect through a statutory framework, then it would unlikely apply retrospectively (as Mr Woods states).

39 I note neither of WorkSafe's comments[12] expressed to the Council in processing the permit application nominated any IPAA and OPAA distances.

Council's Interim Management of Land Use Planning Around Major Hazard Facilities 2014

40 Dr Thomas refers to the Hobsons Bay City Council Interim Management of Land Use Planning Around Major Hazard Facilities [Interim Guidelines].[13]

41 This document outlines a process for considering planning permit applications for land in the vicinity of MHFs. It includes notice to the Victorian WorkCover Authority and consideration of the comments or advice of the authority. It refers to advocacy for State policy addressing

land use around MHFs. As noted earlier, State policy has changed since 2014.

The Interim Guidelines refer to IPAAs and OPAAs.[14] The document cites the distances and measuring points including:

Generally, the inner advisory area extends for 185 metres from the tank bund and where applicable, 300 metres from processing units of MHF.

Generally, the outer advisory area extends for 300 metres from the tank bund within the MHF and where applicable, 500 metres from processing units of MHF.

43 Relevantly, the document expressly states that the checklist in the fact sheet does not apply to (among others) Qenos Altona, which is already surrounded by land that is zoned SUZ4. This affects the document's application in the current proceeding.

44 The applicant relies on Dr Thomas' expert evidence. There is no contrary expert evidence. Dr Thomas' evidence adopts a basis for assessment that includes measurements from the existing southern-most tank and principal processing area within the Olefins site.

45 I do not set out the commentary and basis of the statement, or second statement, but do recite the conclusions of the first document:[15]

None of the premises south of the Werribee railway line and west of Maidstone Street are in the Outer Planning Advisory Area (OPAA) and therefore no risk-based constraints are applicable to them.

Part of the premises of M G Barnes and part of other premises such as DHL south of the Werribee railway line and east of Maidstone Street are inside the OPAA if it is defined as being 300m from the nearest storage tank or.500m [sic] from the principal processing area at Qenos Olefins. With this in mind, these premises should prepare and practice a compliant emergency & evacuation plan and enact it if an emergency occurs.

The premises of 220-238 Maidstone Street is just outside of the OPAA whichever of the two WorkSafe distances are applied. This property therefore does not have any risk-based constraints. The premises is however close to the southernmost edge of the OPAA such that it would be wise for its occupiers to also develop a compliant emergency and evacuation plan. In this case, the plan should be a single plan to which all ten occupiers I F Thomas & Associates subscribe, which all ten occupiers practice and which all ten occupiers enact if an emergency event occurs.

Given the prevalence of Inner and Outer Planning Advisory Areas (IPAA and OPAA) defined by WorkSafe and mirrored by Council as IAA and OAA, any other constraint such as population densities should be considered for removal. They were perhaps valid when first

instituted based upon the form of the seven-company Altona Petrochemical Complex at that time, and upon the findings of the 1987 quantified risk assessment (QRA).

If WorkSafe and Council continue to be of the view that use of Quantified Risk Assessment modelling should prevail as it does in the UK when defining planning constraints surrounding Major Hazard Facilities (as it did in the 1987 Altona case), then a new QRA study should be enacted now that the Altona Petrochemical Complex is quite different to the way it was in 1987. In Major Hazard Facility terms, Qenos Olefins is the only facility within the Complex warranting this. It is correct that QRA is a considerably more thorough and accurate means of assessing risk than just applying notional limitations. However, WorkSafe presently appears intent on continuing the use of the notionally defined inner and outer planning advisory areas. Consequently if QRA was to become the tool of choice, it should be applied to all of Victoria's 40 MHFs.

Given the greater strength of construction of the premises at 220-238 Maidstone Street when compared with others nearby, the flexibility offered to would-be lessees in offering either 500m2 or 1000m2 of floor area, as well as the prevalence of WorkSafe separation criteria addressed above, I recommend that the Tribunal should consider approving the proposal for an indoor gym at Unit 1 with four (4) employees as sought.

46 I agree with the Council's submission that the following relevant key principles are evident in the scheme with respect to industrial land use and MHFs:

• minimise exposure of risk to health or life of persons working or visiting land that comes within SUZ4 Altona Special Industrial Area;
• protect registered or licenced major hazard facilities from encroachment by sensitive land uses;
• recognise the importance of the core industrial precinct to the municipality and the State of Victoria.

47 There does not appear to be a dispute about these and associated principles evident in policy and SUZ4, as relevant to the current proceeding.

48 There is no mapping for this MHF to provide greater certainty or clarity. There are obvious differences in submissions and evidence as to how the relevant separation distances should be derived, from where they should be measured and what the distance/s should be.

49 In addition, there is a difference in the actual distance between the subject land and the Olefins site boundary, as described by Dr Thomas:[16]

According to WorkSafe Victoria the subject site is 215m from the Qenos Olefins site boundary and 220m from the Qenos Plastics site boundary. I understand that the railway reserve is the boundary of Qenos Olefins which I measured as being approximately 100m from the subject site. But this I suggest is irrelevant.

50 I have considered the different positions and approaches presented by the parties including the various distances cited by Dr Thomas. As indicated, assessing the proposal against the distances in the Position Paper should be approached with qualification, as also must distances used in other cases, notably Shell[17], where mapping and other material were available.

51 I do not give weight to expert opinion that casts doubt on the designation of SUZ4 due to what is said to be an outdated QRA, including the following:[18]

Given further, that the 1987 quantified risk assessment (QRA) is now out-of-date following the many changes which have happened at the Altona Petrochemical Complex, it is further recommended that the Tribunal seeks that WorkSafe conducts a second QRA and considers its criteria. In the meantime based upon the findings of my 13th July 2021 advice, it is suggested that the Tribunal seeks that Hobsons Bay City Council abandons the SUZ4.

52 I must apply the scheme as I find it. My role is to determine this permit application. It is not my role or function to direct WorkSafe to conduct the assessment referred to in the evidence, nor to ask or direct the planning authority to rezone the land. The evidence also makes some other comments of this nature, apparent in the conclusions I recited earlier, that are not relevant or not persuasive to the matter before me in this case.

53 The distance to the Olefins site scales at around 100 metres (depending on the angle adopted) taking the north side of the railway reserve as the boundary (the SUZ3 boundary). It is further to existing tanks and processing plant infrastructure, as Dr Thomas calculates.

54 I am not persuaded to accept Dr Thomas' evidence that the premises of 220-238 Maidstone Street does not have any risk-based constraints. Among the reasons given in evidence are:

• The precedent set by seven cited facilities[19] with an IPAA of 185 metres or 300 metres and an OPAA of 300 metres or 500 metres, each measured from defined locations.
• Consideration of the advice in the Interim Guidelines, as I have set out earlier.

55 As I have stated, the Interim Guidelines expressly do not apply to the SUZ4. The Interim Guidelines do, however, apply to several facilities relied upon a precents.[20] They can be distinguished from the Qenos facility.

The subject land's physical proximity to the MHF and SUZ3 is such that it could be severely affected if any of several potential incidents eventuate at the MHF, with consequential substantial risks to anyone at the subject land. Substantial risks are associated with a facility of the type proposed on the subject land. Events to which Mr Woods refers include fire, explosion, and/or exposure to toxic vapour or toxic smoke plumes. A major event of these types may be rare but can be catastrophic. Incidents of lesser magnitude can still create substantial risks to the health and safety of those attending the subject land.

The railway line is an important physical barrier. But it would not prevent impacts from events or incidents described, thereby placing at risk the health and life of persons working at, or visiting, the subject land.

Into the future, the operation of the Olefins site could include on-site facilities and/or activities closer to the southern railway boundary than occurs today, still within SUZ3.

59 I accept the wisdom of an emergency and evacuation plan. This does not, however, overcome the risks associated with the proximity of the subject land to Olefins MHF.

60 I agree with submissions by the Council and WorkSafe that such a plan would not provide adequate risk reduction for reasons including:

• Emergency plans are typically considered to be mitigative control measures, rather than preventative or reducing the likelihood of an incident occurring.
• In order for emergency plans to be effective, all persons who may be affected by an incident would need to be trained in the emergency plan, including all patrons and staff. While the logistics may be workable as discussed in evidence, there are many variables in how such as plan can be formulated and implemented in this case.

61 Further, and relevantly to the last point above, Dr Thomas' evidence addresses an emergency and evacuation plan. He describes it as one plan to which all ten occupiers of the 10 warehouses subscribe, which all 10 occupiers practice and which all 10 occupiers enact if an emergency event occurs.

62 The permit application before me only relates to a single unit of the 10. I cannot direct a plan to apply to all 10 premises; only one unit is the subject of the permit application notwithstanding intended shared car park usage. There is no information or certainty as to what uses the balance of the warehouses are/will be put, what specific requirements different land uses and employee arrangements need, and what numbers of visitors would be within the complex to understanding how evacuation/emergencies could be managed.

63 Mr Gelber submits the small gym is proposed in a solid building, referring to the expert evidence that includes:[21]

For marginal locations for example in this case, where premises are located closer than the required 300m or 500m OPAA distance, it may still be possible for a premises to be acceptable provided that it is of blast-proof design or semi- blast-proof design. ....., it is noteworthy that the structure of 220-238 Maidstone Street is considerably stronger than several other nearby premises. Nearby warehouses are mostly constructed with steel framework clad with colourbond steel sheeting. The subject premises is constructed with 7.9m high 150mm thick concrete tilt-panel walls to the sides and 8.4m high 150mm thick tilt-panels front and rear. Only the roof is iron-clad and steel framed. I am advised that windows are of toughened glass. The north facing wall contains 12 tilt-panels, six solid and six with windows. Tilt-panels are footed on foundations 38cm into the ground below finished floor height.

64 I note the information provided. However, this does not overcome the fundamental issues arising from this proposal, being the exposure to risk of persons working in or visiting the premises in the SUZ4 area. There are a range of potential harmful events, in additions to blasts.

65 There are two elements parts to arguments advanced by the parties with respect to the relevance of precedents:

• Existing precedents to which the applicant and witness refer.
• Precedent that approval of the gym would set for other permit applications and approvals to exceed the Altona employee population density controls.

66 Dr Thomas' statement of evidence includes:[22]

The recently approved rock climbing facility (Climb West) at 193 Maidstone Street (corner of Morrow Street) is within Special Use Zone 4 and has many patrons and additional food van patrons as well as staff. Concern for example by Qenos in its objection by Council regarding the subject site setting a precedent in the commercial SUZ4 area, is misplaced. Climb West is 461m from the Qenos site boundary and is within the internal draft WorkSafe 1000m separation distance. Climb West therefore is the precedent within the Special Use Zone (SUZ4).

67 Mr Gelber submits the small gym is proposed in an area where these uses are not foreign. His written submission[23] cites seven "active uses" present in the locality. The list has some similar information to that set out in Dr

Thomas' statement of evidence.[24] Dr Thomas states that the information has been provided by the applicant. Dr Thomas suggests that the information be verified.

As explored by Ms Lunn through cross-examination, the information has not been verified. Further, it is not clear whether the information is based on permit approvals in terms of the stated "allowable numbers". I note that of the dates given, two are from 2012 and 2013 and one is from 2016. These appear to pre-dated current State policy. The other listed properties are undated in terms of the year built.

69 I accept that there are some land uses in the area that appear to have significant numbers of persons on-site. Besides the fact that the information raises a number of questions and is unverified, it demonstrates how other approvals can be argued as precedents.

70 If I assume the examples are all approved land uses at the allowable numbers stated, collectively they demonstrate the extent of human exposure to risk from incidents that may occur from the MHF. Approval of the current application would, at the employee population density proposed, inappropriately exacerbate that.

71 The current policy framework (per VC152) has strengthened the decision-making framework with respect to the role and importance of MHFs. Among other strategic directions, it seeks to avoid outcomes where large numbers of persons are at risk and to avoid the State-significant facilities being jeopardised. Reliance on, or reference to, the listed examples as precedents in support of the current permit application:

• Is demonstrative of the "tyranny of small decisions" cited in Shell [25] to which the Council and WorkSafe refer.
• Does not sufficiently acknowledge or give weight to the function and purpose of the SUZ4 and State policy to manage land uses in areas around the MHF and to minimise the numbers of people who could be severely affected if any of several potential incidents eventuate. Even though the risk profile associated with a MHF is generally one of low probability, it is of potentially high consequence to human safety.[26]

72 Approval of the current permit application has the potential to be relied on as a precedent for the use of properties, including other currently-vacant warehouses in the same complex as the subject land. The above discussion is apposite to this point.

73 The extent of variation proposed to the employee population density controls on the subject land, and if sought to be replicated on other sites, would put the health and lives of too many additional people at risk.

Approval of the current application may have the effect of limiting the opportunities for other land uses, as a consequence of cumulative employee population density numbers within the warehouse complex. That is, it unreasonably takes up a disproportionate 'share' of employee population density.

75 WorkSafe's submission refers to the potential closure of one Qenos plants:[27]

Dr Thomas's statements to the effect that Qenos Plastics and Qenos Resins are no longer MHFs are incorrect. All three sites (Olefins, Plastics, Resins) are licensed MHFs which are covered by a single licence. WorkSafe does not expect that situation to change as a result of the impending mothballing of the Plastics plant. WorkSafe understands that Qenos plans to use the Plastics site for storage and that it will be maintained in such a state so as it can be restarted at any time. In any event, Qenos Olefins is the closest Qenos site to the Subject Land.

76 My decision is based on known facts presented by the parties.

77 There is no indication that the Olefins site is proposed to change.

78 Any potential closure or change to other facilities within the Qenos MHF complex does not change the conclusions I have reached above.

79 For the above reasons, having considered the relevant provisions and policies in the scheme, I am not persuaded to accept the applicant's submission that the permit application accords with the purposes and expectations of the SUZ4, is compatible with adjoining and nearby land uses, or is consistent with the objectives of clause 13.07-1S of the scheme.

80 The permit application is not acceptable when assessed under clause 37.01. It is of an intensity that would unacceptably increase the human exposure to risk from incidents that may occur from a major hazard facility and it would prejudice the operation and expansion of the petrochemical industry. It is not consistent with State and local policy.

81 The applicant submits acceptable traffic and car parking arrangements are proposed based on Mr Hancox's evidence. Its submission and evidence respond to the Council's sixth ground. That is, the car parking demand of the proposed use with 30 patrons is significant and would negatively impact on the availability of car parking for other tenancies on site. It may lead to increased parking on the street, which is inappropriate particularly along a busy arterial road.

Clause 52.06-5 does not prescribe a required number of car parking spaces for the proposed use of the premises as an indoor recreation facility. Clause 52.06-6 states that:

Where a use of land is not specified in Table 1 or where a car parking requirement is not specified for the use in another provision of the planning scheme or in a schedule to the Parking Overlay, before a new use commence or the floor or site area of an existing use is increased, car parking spaces must be provided to the satisfaction of the responsible authority.

83 The Council has determined that the proposed car parking arrangements are not to its satisfaction.

84 I accept that there are 85 car spaces serving the warehouse complex and that car parking is not permitted along this part of Maidstone Street based on Mr Hancox's evidence. There is ample on-site car parking available at present given the number of other warehouses that are vacant. I appreciate that there can be different temporal parking patterns associated with a gym compared with a warehouse, as well as associated potential car park efficiencies. However, the additional impact that arises from the intensity of the proposed land use is its disproportionate use/share of the car park and the degree to which this in turn may prejudice the potential for other land uses to establish and operate as part of the complex.

85 I have referred to the lack of issues arising with respect to the proposed signage. I have proceeded on the basis that the proposed signage is acceptable.

86 For the reasons given above, I am not persuaded that the use of the subject land for the proposed gym is acceptable. Benefits such as associated with the provision of recreation services and employment do not outweigh the risks associated with the intensity of the proposed land use so proximate to the existing MHF. Olefins is part of the Altona Petrochemical complex that is significant to Victoria. The proposal is contrary to State policy with respect to MHFs. The proposal is inconsistent with the purpose of SUZ4. It does not minimise exposure to risk to health or life of persons working in or visiting the area and it has the potential to prejudice the operation and expansion of the petrochemical industry.

87 I therefore affirm the responsible authority's decision. A permit is not granted and no permit is to issue.

[1] Extract from a plan appended to Dr Thomas' statement of evidence (13th July 2021). SUZ3 is the Petrochemical Complex Area where Qenos chemical plants are located.

[2] Clause 52.06 requires parking provision to be to the satisfaction of the responsible authority.

[3] The land is offset from north. Directional references have been simplified for ease.

[4] Mr Hancox's statement of evidence, at section 2.5, based on instructions from the applicant.

[5] The submissions and evidence of the parties, supporting exhibits, and the statements of grounds have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[6] Based on WorkSafe's submission, which differs from Dr Thomas' initial understanding that Qenos Plastics and Qenos Resins are no longer MHFs.

[7] WorkSafe's role in the proceeding was raised at the start of the hearing by Mr Gelber. The parties agreed on the authority being referred to as an interested party. It is not a referral authority.

[8] Applicant's written submission at paragraph 63.

[9] Major Hazards Program - Position Paper (26 September 2019).

[10] The Council's submission also records the planning report that accompanied the permit application. It states that the current proposal seeks to have two employees operating from the site for a maximum of 169 hours during a one-week cycle. This is over Condition 6 as included in planning permit P1532665. The planning report says sufficient measures are sought in the planning application to ensure that the proposal is consistent with the purpose of SUZ4.

[11] Major Hazard Facilities Advisory Committee Final Report, July 2016.

[14] The basis of these appear to align with the Land use planning near a major hazard facility, 2010.

[15] Statement of evidence dated 13th July 2021, section 4, pages 10-11.

[16] Statement of evidence dated 26th July 2021, section 3.1 page 2.

[17] Shell Company of Australia v Hobsons Bay CC & Ors (includes Summary) (Red Dot) [2012] VCAT 1184, [15].

[18] Dr Thomas' statement of evidence dated 13th July 2021, section at page 8.

[21] Statement of evidence dated 13th July 2021, section 3.5.1 at pages 7-8.

[22] Statement of evidence dated 26th July 2021, section 2.6 at page 2.

[23] Paragraph 13 of the applicant's written submission.

[24] Statement of evidence dated 13th July 2021, section 3.5.6 at pages 9-10.

[25] Shell Company of Australia v Hobsons Bay CC & Ors (includes Summary) (Red Dot) [2012] VCAT 1184, [28].

[26] A description given in the Major Hazard Facilities Advisory Committee Final Report, page 13 of 92.

[27] WorkSafe's written submission at paragraph 34.