Victorian Civil and Administrative Tribunal|2002-06-18|Before: Mr J

Mercer & Anor v Moorabool SC & Central Highland Water Authority [2002] VCAT 401 (18 June 2002)

PLANNING AND ENVIRONMENT LIST Application for Review No.P51397/2001

Application for Review under s. 77 Planning and Environment Act 1987, farm dams greater than 10 cubic metre capacity, cumulative impact of farm dams on stream flows, catchment management, Rural zone, use as of right, policy recognition of and support for economic benefits of specialty farming and innovative agricultural practice, balanced against sustainable land and catchment management.

Referral Authority Central Highlands Region Water Authority

Medium Neutral Citation: [2002] VCAT 401

The decision of the responsible authority is affirmed.

Mr T Sullivan, surveyor of Beveridge Williams Pty Ltd, appeared on behalf of the Applicant for Review.

Mr J Taylor appeared on behalf of the Responsible Authority.

Mr M Bartley, solicitor of Phillips Fox Solicitors, appeared on behalf of the Central

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("The Act") brought by C Mercer & J Nitschke to review a decision by the Shire of Moorabool ("The Council") to refuse a permit to enlarge two dams located on a rural property in Powerline Cutoff Road, Mt Egerton.

2. The application was refused by the Council pursuant to s. 61 (2) of the Act and in accordance with an objection to the grant of a permit by the Central Highland Water Authority (CHWA) to which the application had been referred under the provisions of clause 66.02 of the Moorabool Planning Scheme

3. The grounds of refusal are expressed in the terms of the referral authority's objection to the application and are as follows;

1. Woolon Creek is a tributary of the West Moorabool River. The water resources in this catchment are already heavily committed with high consumptive water users. Certain reaches of both Woolon Creek and West Moorabool River experience periods of low or zero flow.

2. In a dry year, up to 50% of streamflow in the Lal Lal catchment is captured by farm dams upstream of the reservoir. Whilst the proposed dam by itself may have limited effect on flow, incremental addition of many such dams summates (sic) to a significant impact on catchment yield.

3. The authority is concerned about the precedent this proposal may set, if allowed to proceed. If a permit is granted for catchment dam, this may be used as a case study for further development of catchment dams and cause incremental effects as explained above.

4. The Application for Review of the refusal cites the following grounds

1. Enlargement of the two dams is required to supply water to a new agricultural enterprise.

2. The grounds for refusal of the permit are opinion rather than substantiated facts.

3. A planning permit is required to enlarge the dams under the Planning Scheme. A licence is likely to be required to use the water for irrigation purposes under the Water Act. The two matters are distinct and should be treated as such.

5. It is proposed to extend two existing dams on the review site and to increase the capacity of the dams by approximately 9ML, giving a capacity of the dams on the site of 15 ML. The increased dam capacity is required to water an estimated 13 hectares of olives trees, most of which have been planted.

6. The larger of the two existing dams has a capacity of 5 ML and this dam is proposed to be increased in size to 120 metres length and 80 metre width with a capacity of 13.8 ML. The smaller of the two dams has a capacity of 1.2ML and this is proposed to be increased to 1.5 ML.

7. The review site is has an area of 32.17 hectares and is located within a rural environment, approximately 2.2 kilometres from the township of Mt Egerton. Powerline Cutoff Road forms the eastern boundary of the site and the Woolon Creek forms the western boundary. The Lal Lal Reservoir is located approximately 1.3 kilometres south of the review site.

8. Mr Sullivan, who appeared for the Applicants for Review, provided the following useful description of the site, which I adopt;

"The property is undulating with a broad valley through the middle of the property approximately a third of the way from the northern boundary. From the broad valley the property rises steeply towards a point approximately a third of the way along the boundary from Powerline Road. From this high point, the land falls to the north, west and more steeply towards the east. There is a fence along the top of the escarpment. West of this fence, the land falls very steeply to the Woollon Creek............."

9. Woolon Creek is a tributary of the Moorabool River West Branch, which flows south west into the Lal Lal Reservoir. The review site is located within an area which is a Special Water Supply Catchment Area listed in Schedule 5 of the Catchment and Land Protection Act 1994. Topography in the vicinity of the proposed dams is gently undulating to moderate hills, and land use is mostly grazing and broad acre cropping, and most of the catchment has been cleared for this purpose. I was advised by Dr Nathan, an hydrologist who was called to give evidence on behalf of the CHWA, that most rivers in the catchment are degraded and exhibit bank instability, erosion and limited riparian vegetation, and that the condition of the Woolon Creek is consistent with this description.

10. The subject land is zoned Rural, the relevant purpose of which, in addition to implementing the State and Local Planning Policy Frameworks, is to provide for the sustainable use of land for extensive animal husbandry (including dairying and grazing) and crop raising (including horticulture and timber production), and to encourage;

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises."

11. A permit is required pursuant to clause 35.01-3 to construct a dam which has a capacity greater than a capacity specified in the schedule to the zone, which in this instance is 10 cubic metres.

12. Before deciding on an application, consideration must be given, in addition to the decision guidelines at Clause 65, to decision guidelines at clause 35.01-6. These decision guidelines are categorised under the headings of General Issues, Rural Issues, Environmental Issues, and Design and Siting Issues.

13. The land is also affected by an Environmental Significance Overlay (ESO1) the purpose of which is to identify areas where the development of land may be affected by environmental constraints, and to ensure that development is compatible with identified environmental values. A permit is required to construct a building or to construct and carry out works. Schedule 1 to the Overlay describes the affected area as a "Proclaimed Water Catchment Area", and the Statement of environmental significance is;

"The Shire of Moorabool contains several proclaimed water catchments, which provide water to urban and rural development throughout the Shire. The protection of water catchments is essential to the health of all communities that rely on water for domestic and stock supply."

14. The environmental objectives to be achieved are:

* To protect the quality and quantity of water produced within proclaimed water catchments.

* To provide for appropriate development of land within proclaimed water catchments.

15. Application requirements under the Schedule relate to the need for an applicant to demonstrate that the land is capable of absorbing sewerage and sullage effluent and that waste will not enter a water way. Relevant decision guidelines in the Schedule require the responsible authority to consider the comments of the relevant water authority on the;

* Effect on the quality and quantity of water within the proclaimed catchment from the proposed method of waste disposal;

* Requirements and provision of the State Environment Protection Policy (Waters of Victoria) and the provisions of the "Septic Tanks Code of Practice".

16. Further decision guidelines relate specifically to circumstances where the land is not connected to reticulated sewerage and facilities are to be provided for the onsite disposal and treatment of waste water. These are matters which are not relevant to the consideration of the current application

17. Notwithstanding the fact that the statement of environmental significance under the ESO1 is expressed in broad terms and refers to the protection of both the quality and the quantity of water produced within the catchment, it would appear from my reading of the application requirements and decision guidelines that the principal issues for consideration under the overlay relate to waste disposal matters, and that in terms of the relevant water authority's consideration of applications referred under the overlay, these are similarly limited to the consideration of waste disposal matters.

18. Pursuant to clause 66.02 an application to use or develop land that is within a Special Water Supply Catchment Area listed in Schedule 5 of the Catchment and Land Protection Act 1994 and which provides water to a domestic supply, must be referred to the relevant water board or water supply authority. Because the review site is located within the Lal Lal Catchment, the CHWA is the relevant referral authority with respect to this application.

19. The application was also referred to the Southern Rural Water Board (SRWB) because the review site is located close to the Woolon Creek and the SRWB is responsible for licensing works on waterways in this area. I was advised that the SRWB did not object to the application due to the fact that neither of the two proposed dams are located on the waterway.

20. The review site is also affected by a Wild Fire Management Overlay and a Design and Development Overlay Schedule 2. The proposal does not raise any relevant issues with respect to these overlays.

21. General decision guidelines are at Clause 65 of the Scheme. These guidelines state that because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause. Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:

* The matters set out in Section 60 of the Act.

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The purpose of the zone, overlay or other provision.

* Any matter required to be considered in the zone, overlay or other provision.

* Factors likely to cause or contribute to land degradation, salinity or reduce water quality.

* Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

* The extent and character of native vegetation and the likelihood of its destruction.

* Whether native vegetation is to be or can be protected, planted or allowed to regenerate.

* The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

22. In the exercise of the discretion available under the planning scheme, the zone purposes and the decision guidelines under the zone, the overlays and Clause 65, require consideration of the State and Local Planning Policy Frameworks, including the Municipal Strategic Statement and local planning policies.

23. With respect to the State Planning Policy Framework (SPPF) the objective of Clause 15.01 Protection of catchments, waterways and groundwater, is to assist the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater, and the marine environment. Decision-making by planning and responsible authorities must be consistent with any relevant requirements of State environment protection policies as varied from time to time. Planning and responsible authorities are expected to coordinate their activities with those of the Boards of catchment management authorities appointed under the Catchment and Land Protection Act 1994 and consider any relevant management plan or works program approved by a catchment management authority. Planning and responsible authorities are required to consider the impacts of catchment management on downstream water quality.

24. Clause 17.05 Agriculture is also relevant. The objectives of this clause seeks to ensure that the State's agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use and to protect productive farmland which is of high quality and strategic significance in the local or regional context. There is a strong emphasis given to the encouragement of sustainable agricultural land use, related to the capability of the land.

25. The Local Planning Policy Framework (LPPF) identifies long term directions about land use and development in the municipality and provides the rationale for the zone and overlay requirements and particular provisions in the scheme. The Municipal Strategic Statement (MSS) identifies the importance of the water catchments as an issue which must be addressed by planning decision making in the municipality. At clause 21.03 it is stated that;

Management of the quality and quantity of the Shire's water resources is a critical issue. The presence of extensive proclaimed water catchments in the Shire highlights the need for land use and development planning to address the important regional issue of maintenance and improvement to water quality. In particular the catchment areas of reservoirs that supply domestic water for towns in the Shire and other areas including metropolitan Melbourne, Ballarat and Geelong as managed by Western Water, Central Highlands Water, Southern Rural Water, Coliban Water and Barwon Water need to be protected from inappropriate development. Securing long term supplies for water for the towns in the Shire is an important issue.

26. Clause 21.08 refers to the Council's policies regarding protection of the environment. The importance of water catchment areas is recognised and with respect to the construction of farm dams, this clause refers to the need to require a permit for dams above 10 cubic metre capacity, and the need for consideration of landscape, environment and land degradation issues.

27. Clause 21.09 recognises the important function performed by agriculture which generates economic activity in the form of jobs, investment and income, and providing open landscape corridors between settlements within the Shire and beyond the fringe of metropolitan Melbourne. This clause specifically identifies the need to protect agricultural land as an economic and natural resource, encourages the sustainable management of agricultural land, and also encourages specialty farming and innovative forms of agriculture, in appropriate locations.

28. Clause 22.04 is a local policy relating to Dams, and applies to all rural land. The policy basis emphasises the appropriate siting, design and construction of dams from a safety, equitable water supply and sustainable catchment management perspective. The policy seeks to ensure that the size and location of dams relates to the capability of the catchment and the intended use of the land. The capacity of dams is also encouraged to be appropriate for the intended use.

29. At the review hearing all parties tabled and read from written submissions and made oral presentations.

30. Mr Bartley called Dr Rory Nathan, hydrologist of Sinclair Knight Merz and Mr Michael Shirley, ecologist, also of Sinclair Knight Merz, to give evidence. Dr Nathan and Mr Shirley gave evidence and presented written report and were made available for cross examination.

31. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

32. At the conclusion of the hearing, Mr Bartley put forward a proposal by which the applicant could secure water of the capacity required from another dam in the catchment so that flows into the Woolon Creek would not be further reduced. In response to Mr Bartley's suggestion, I provided the Applicant for Review with an opportunity to explore options which may lead to such an outcome.

33. I subsequently received correspondence from Beveridge Williams on behalf of the applicant for review, advising that a number of options had been pursued to obtain an allocation of water within the catchment from another source. The options pursued were;

* Seeking to obtain an entitlement from an existing off stream dam located within the catchment.

* Trying to purchase, or arrange a long term lease of, an existing water licence up to the required amount.

* Seeking to purchase 9 ML from a recently surrendered diversion licence of 20 ML.

34. I was advised that the applicant had not been successful in reaching any accommodation regarding an alternative water supply, under either of the options referred to above.

35. In accordance with the directions provided at the hearing, the Beveridge Williams correspondence was circulated to the other parties, and the opportunity was made available for submissions on that correspondence to be made. A submission was received from Phillips Fox on behalf of Central Highlands Water. This submission noted that the suggestion offered at the hearing by Mr Bartley has been ignored by the applicant who has pursued alternative formal arrangements involving the transfer of a water entitlement with Southern Rural Water, which, in Phillips Fox's submission was bound to fail because Southern Rural Water has no statutory mechanism to regulate this arrangement. The submission concluded;

"We finally note that the Interim Diversion Methodology forwarded to Beveridge Williams by Southern Rural Water, and attached to the correspondence forwarded, is a temporary process designed to apply while Sustainable Diversion Limits are developed for the catchments.

Central Highlands Water considers that there is nothing provided in the Beveridge Williams correspondence which establishes any basis upon which the Tribunal can be satisfied that the applicant can secure water from within the catchment without adversely affecting the existing catchment hydrology which is already over stressed"

36. Mr Taylor advised that the Council had refused the application as a consequence of the receipt of an objection from the CHWA acting as a referral authority and that the Council was obliged to refuse the application under section 61 (2) of the Act. Mr Taylor submitted that the Council supports innovative agricultural land use but that it is also committed to appropriate catchment management, and that in the present case, the receipt of the CHWA objection prevented the Council from undertaking an assessment of the application and determining whether the benefits of the proposal to agricultural production outweighed any detriment to the catchment.

37. In response to a question from myself, Mr Taylor indicated that the Council may have given favourable consideration to the application, in the absence of the CHWA objection.

38. The CHWA is a statutory authority established under the s. 98 of the Water Act 1989 with primary responsibility to provide water and sewerage facilities to the Ballarat region. The CHWA owns and operates a number of surface reservoirs and groundwater bore fields and is also part owner of the Lal Lal Reservoir which is located downstream of the review site. This reservoir is a major source of water for Geelong, Ballarat and a number of smaller urban centres.

39. Mr Bartley, who appeared on behalf of the CHWA presented a detailed submission in which he outlined the history of water resource management in the catchment. I was advised that concern had existed for many years about the impact of off stream farm dams on water resources in this catchment, and I was referred to a 1987 report commissioned by the Department of Water Resources which concluded that:

"The total number of farm dams in the Lal-Lal Reservoir and Ballarat water supply catchments has increased from 242 to 637 over the period 1970 to 1984/85.

Over the same period the total farm storage volume in the study area is estimated to have increased from 4.650 ML to 11.800 MI.

In the Lal Lal Reservoir catchment the reduction in streamflow resulting from the present level of irrigation water demand is equal to about 70% of the irrigation water demand or 7% of the mean annual stream flow in average years. This increases to as much as 50% of the annual streamflow in drought years.

The yield of the Lal-Lal reservoir may be being adversely effected by the potential significant effects of irrigation activity (and associated farm dam construction) on strreamflows in drought years."

40. Mr Bartley advised that in recent years the CHWA had come under increasing pressure to release water from the Lal Lal Reservoir for the benefit of downstream users, volumes which are in excess of flows into the reservoir. Based on the 1987 report referred to above, it is the CHWA's view that reduced flows into the reservoir are due to the cumulative impact of farm dams within the catchment. In response to these circumstances, I was advised that the preparation of a Stream Flow Management Plan for the Moorabool River System commenced in 1998, and that research undertaken as part of that project concluded that:

"Frequency and duration analysis of low flow events at Batesford (gauge 232202) indicates that the frequency of cease to flow events has only increased slightly, nevertheless, the duration of these events has increased substantially. The median duration of a cease to flow event under the natural flow regime was approximately 20 days of cease to flow events are approximately 100 days in duration under the current regime compared to 22 days under the natural regime." (B.P. Zampatti and L.M Grgat "An Assessment of Environmental flow Requirements for the Moorabool River", Arthur Rylah Institute August 2000)."

41. It was Mr Bartley's submission that the Moorabool River System is overcommitted and the issue of permits for further farm dams for irrigation is not justified until the Stream Flow Management Plan has been prepared and implemented.

42. Mr Bartley relied on the evidence of Dr Nathan with respect to the impact of farm dams on the flows in the Woolon Creek, and the evidence of Mr Shirley with respect to the ecological affects of reduced flows.

43. It was Dr Nathan's evidence that the Woolon Creek is situated in a catchment that is already heavily stressed for water availability and that hydrology, flood plain inundation, water quality, salinity and instream habitat have all been significantly altered as a result of the construction of dams and reservoirs to provide water for irrigation and water supply within the catchment. With respect to the impact of farm dam construction on the Woolon Creek catchment specifically, Dr Nathan concluded that the current level of farm dams have:

* "Halved the volume of typical (median) daily flow.

* Doubled the proportion of time the stream ceases to flow.

* Reduced the number of high flow freshes by 40%.

* Delayed the arrival of winter freshes later into the season.

* Increased the likelihood of low flow spells commencing in the early winter period, and

* Appreciably increased the proportion of time that passing flows released from Lal Lal Reservoir fall below minimum trigger values".

44. Dr Nathan also referred to the Sustainable Diversion Limit (SDL) project carried out by the Department of Natural Resources and Environment (DNRE), the main focus of which was to develop a means to estimate the winterfill diversion potential of unregulated streams. The diversion potential represents an upper limit on diversions beyond which there is an unacceptable risk that additional extractions may degrade the environment. It was Dr Nathan's evidence that the SDL for the Woolon Creek catchment can be calculated using data from the SDL project and that on the basis of his calculations, the current level of development in the whole catchment (271 ML) exceeds the SDL of 196ML. The current volume of the existing farm dam on the review site (5ML) already exceeds the SDL for the local sub catchment (0.8 ML).

45. It was Mr Shirley's evidence that no information on fish, macroinvertebrates and the water quality of Woolon Creek is available, and his assessment of the ecological impacts of reduced flow are based on information available on rivers in the Moorabool River catchment and his assumption that the Woolon Creek would have characteristics typical of those creeks and rivers.

46. The lack of data specific to the Woolon Creek is an obvious weakness in Mr Shirley's evidence, and while the evidence was not disputed during the hearing, the value of the evidence to my consideration of this application is necessarily limited to an assessment of the impact of reduced flows on river systems generally, and cannot extend to an assessment of the impact on the Woolon Creek specifically. It was Mr Shirley' evidence that;

The current effect of farm dams in the catchment has been a significant change to the flow regime. This change is (sic) would be having a detrimental effect on the in - stream ecosystem, which is reflected in the generally degraded nature of the system.

47. It was Mr Sullivan's submission that because the proposed enlarged dams are not located on a waterway, his client has a right to harvest water which flows across the land but as a consequence of the CHWA objection to the grant of a permit, there is insufficient volume in the existing dams to store that water. While acknowledging that competing interests for access to water, Mr Sullivan submitted that the principal issues in this matter are;

* Are the enlarged dams required for an agricultural activity?

* Are the proposed size of the dams commensurate with the proposed use?

* Do the dams satisfy and comply with the relevant policies of the SPPF, LPPF, including the MSS and local policies?

48. With respect to the first two questions, the fact that the two enlarged dams are required for an agricultural activity and that the size of the dams are commensurate with the proposed use, were not disputed. Mr Sullivan's client, Mr Mercer presented calculations for the dam capacity needed ".....to maximise the productive capability of the olive plantation", which showed that a capacity of 15.2 ML is required. These calculations were not disputed by the CHWA or the Council.

49. Mr Sullivan further submitted that the degradation of the catchment to which the CHWA referred, is a result of past and ongoing management practices including the "...huge bulk water entitlements given to Central Highlands Water and Barwon Water................(which) we understand............. were allocated before any Steam Flow Management Plan for the Moorabool River system had been completed....." It was Mr Sullivan's submission that the amount of additional water which is proposed to be harvested and stored would have a negligible impact on stream flows into the Woolon Creek, on the ecology of the creek and on flows into the Lal Lal Reservoir. In this respect Mr Sullivan noted that the additional 9 ML of storage sought by the applicant represents 0.015% of the full capacity of the Lal Lal Reservoir and 0.4% of the average annual bulk entitlements of the water authorities. Mr Sullivan also referred to his client's legal entitlement to harvest water which falls on his land. Mr Sullivan said;

"A fundamental issue in this appeal is who owns the water that falls on our client's land? Delays in the introduction of the Farm Dams legislation would suggest that the water is owned by our clients in accordance with the Water Act. Southern Rural Water have indicated that the dams are not on streams. So our client's have the right to harvest that water.............."

50. Mr Sullivan was also critical of the CHWA's "no dams policy" which he submitted was being pursued by the Authority by using its powers as a referral authority under the Planning and Environment Act to prevent new dams from being constructed for which no approvals are required under the Water Act.

51. As I have indicated above, a substantial component of the applicant's submission in this case, related to the fact that neither of the proposed enlarged dams are located on a water course and that approval for them was not required under the Water Act. In this context it was submitted that the land owner is entitled to harvest and store water which falls on or flows over the land. I have provided in some detail previously in this Decision the relevant planning scheme provisions as they apply to the consideration of this application, however having regard to the applicant's submissions, I think it is appropriate to reiterate that my discretion in this matter derives from those provisions of the planning scheme which establish the basis upon which a permit is required and determines the matters relevant to the consideration of an application. These provisions are;

* The construction of a dam is subject to the grant of a permit under Clause 35.01-3 in the event that the dams have a capacity greater than 10 cubic metres, as specified in the schedule to the zone. In deciding on an application under this provision, I must consider the decision guidelines at Clause 35.01-6.

* A permit is also required for the carrying out of works under the ESO1. The general decision guidelines in the overlay are at Clause 42.01 -3 and specific decision guidelines are at Clause 5.0 of the Schedule to the overlay.

* A permit is also required to construct or carry out works under the Design and Development Overlay Schedule 2 and Wildfire Management Overlay, however as I have previously indicated these provisions do not raise issues which are relevant to the consideration of an application for the construction of a dam.

52. The exercise of my discretion in this matter is limited to the consideration of the relevant matters under the planning scheme, whether or not separate approvals are required for the construction of the dams under separate legislation, such as the Water Act. Similarly, any rights which the landowner may enjoy to harvest or store water which falls on or flows over the land, are constrained by those provisions of the planning scheme which establish whether dams can be constructed on land and whether such works are subject to the grant of a permit.

53. The dilemma I am confronted with in this matter derives from the tension which exists within the planning scheme which results from the encouragement given to the use of Rural zoned land for agricultural uses on the one hand, while simultaneously emphasising the need for sustainable catchment management and for rural uses generally to be carried out in a sustainable manner. The zone purposes, decision guidelines and policy framework make consistent and repeated references to these intended outcomes, however there is in my, very little in the way of meaningful policy direction within the planning scheme to assist in the exercise of discretion, beyond the highly generalised policy framework I have referred to above.

54. The dilemma therefore is that the use of the land for the purpose of crop raising (other than rice growing and timber production) does not require a permit in the zone, and the applicant's use of the land for growing olives falls within the planning scheme definition of crop raising. The enlargement of the existing dams represents the provision of infrastructure required to service this as of right use of the land. On the basis of the evidence presented at the hearing however, the construction of farm dams in this catchment has had and is continuing to have a deleterious affect on stream flows, and this in turn has serious consequences for the ecology and sustainability of the catchment.

55. Notwithstanding my comments regarding the lack of meaningful policy direction in the planning scheme, I am influenced in forming my view that this application ought to be refused by the emphasis given in the relevant planning scheme provisions to the sustainable use of land and to the sustainable management of the water catchment. I am also influenced by the fact that the review site is located within a Proclaimed Water Catchment. While I acknowledge that the planning scheme provides specifically for the use of Rural zoned land for agricultural purposes, these provisions of the scheme need to be balanced against those provisions which also encourage sustainable land use and catchment management, and I have not been persuaded that the enlargement of the dams as proposed is either consistent with these outcomes or that it achieves the appropriate balance between the seemingly conflicting provisions of the scheme.

56. In arriving at a conclusion about whether or not a particular proposal achieves the appropriate balance, the considerations will inevitably vary from one case to another and will be influenced by a range of factors including, but not necessarily limited to, the applicable planning scheme provisions which will vary from site to site, the size of the dams proposed, the degree to which the dam capacity is commensurate with the intended use of the land, the nature of the intended use of the land, the condition of the catchment and the likely impact of ongoing dam development on the catchment.

57. The evidence presented in this case paints a disturbing picture of the condition of this catchment and, on the basis of that evidence, the catchment is already over committed as measured by the Sustainable Diversion Limit criteria, and the ecology of the water courses within the catchment is being seriously, adversely affected as a consequence. I acknowledge that the causes of this situation are diverse and are not limited to the impact of farm dam development alone. Dr Nathan conceded this point in his evidence, however I am satisfied that, on the basis of Dr Nathan's evidence, farm dam development has made a contribution of a cumulative nature to the present condition of the catchment, and as a consequence the construction of additional farm dams must be controlled as part of any effective catchment management strategy.

58. Having regard to the above comments and to my findings with respect to the condition of the catchment, I am not prepared to direct the issue of a permit for the proposed enlargement of the dams, in circumstances where such enlargement will contribute to further reduced flows into the Woolon Creek. My conclusions have been reached notwithstanding the relatively small flow reductions which could be attributed to the proposed dams. In this respect I agree with Mr Bartley's submission and Dr Nathan's evidence that the negative impacts of farm dams is incremental in nature and that the practice of allowing for continual farm dam construction on the basis that each dam has only a small impact, has contributed to the existing condition of the catchment. Having regard to the degraded condition of the water courses in this catchment, I am not prepared to perpetuate this practice.

59. I think it is necessary to comment on the CHWA's "no dam" policy of which Mr Sullivan was extremely critical. I agree with Mr Sullivan that this policy is not by itself an appropriate response to the issue and in my view, is also inconsistent with the need to achieve the balanced outcome to which I have referred. The CHWA's approach to the consideration of applications for farm dams must be carried out by having regard to the merits of each application which comes before it rather than on the basis that no further dams are to constructed. In this case however, I am satisfied that the CHWA's objection to the application is well founded. Having regard to my comments regarding the lack of meaningful policy direction available within the planning scheme, it is in my view imperative that the CHWA proceed to complete the Streamflow Management Plan and to put in place a comprehensive strategy for this catchment, of which a transparent policy on farm dam construction would be expected to form an integral part.

60. My comments concerning the lack of policy direction in the planning scheme also extend to the Council's policy on farm dams at Clause 22.04. I have not found this policy to be particularly useful in directing the exercise of discretion because apart from construction and landscaping requirements, the sole test related to determining the appropriate capacity of a dam is that the capacity is expected to be "...appropriate for the intended use." Under this policy therefore, ongoing dam construction could be permitted irrespective of the impact of the dams on the catchment, provided only that it can be demonstrated that each dam's capacity is appropriate for the use of the land. This test in my view, fails to reflect the complexity of catchment management and the impact that farm dams have on a catchment, and in terms of responding to the stated policy basis of achieving sustainable catchment management, is of very limited use.

61. I have outlined previously the attempts made by the applicant to secure water from another dam in the catchment. I agree with Mr Bartley's submission that these attempts were not in accordance with the Tribunal's direction or the approach suggested by the CHWA at the hearing, upon which my directions were based. As a consequence I am unable to form a view one way or the other with respect to the potential availability of alternative water sources within the catchment which the applicant may be able to access. As a consequence therefore, I have proceeded to determine this application on the basis of the submissions and evidence presented at the hearing.

62. It follows from the above that the decision of the responsible authority is affirmed and no permit shall issue.

Environment Act 1987

Land Protection Act 1994

Mercer & Anor v Moorabool SC & Central Highland Water Authority [2002] VCAT 401

At a glance

Court

Decision date

Before

Source

Judgment (123 paragraphs)

Mercer & Anor v Moorabool SC & Central Highland Water Authority [2002] VCAT 401 (18 June 2002)

Parties

Legislation Cited (2)