Pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal's Order in Application 5.2010.118.1 dated 1 July 2011 is corrected as follows:

1. Paragraph 1, page 3, the word 'ball' is replaced with the word 'bore'. The reference to 9,000litres is replaced with 90,000litres.
2. Paragraph 10, page 6, the reference should be to 'Goulburn Murray Water'.

1. Paragraph 17, page 7,the word 'not' should be before the word 'supported'.

1. Paragraph 21, page 9, the amount of the levy should be $1.40 not $140.00.
2. Paragraph 28, page 10 the word 'his' should be replace with 'this'.
3. Condition 10, page 15, the reference should be to 'megalitres', not 'gigalitres'.

1. By order dated 1 July 2011, the Tribunal ordered that Application No. 5.2010.118 be granted a permit.

2. By letter dated 7 July 2011, Best Hooper Solicitors drew the Tribunal's attention to what it suggested were minor errors within the Tribunal's order, and submitted that the Order should be corrected.

3. Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may correct an order made by it if the order contains:

1. We am satisfied that a mistake or error has occurred here, comprising a clerical mistake, and find it appropriate to authorise a correction of the order.

2. The corrected decision and permit conditions are attached at Appendix A.

Section 77 Planning and Environment Act 1987; Alpine Shire Planning Scheme, Utility installation, Truck movements, Noise impacts, Impacts on rural residential properties.

A Colson, B Meehan, V Wallder, S Reimann, C King and others

1. The decision of the Responsible Authority in permit application no. 5.2010.118.1 is set aside. A permit is granted in relation to land at 471 Buffalo Creek Road, Myrtleford. The permit will allow the use and development of the land as a utility installation (bulk water extraction) generally in accordance with the endorsed plans and subject to the conditions set out in Appendix 1 of this decision.
2. The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of section 85(1) (b) of the Planning and Environment Act 1987.

Mr John Cicero, Solicitor of Best Hooper who called Mr John Kirikidis (traffic) Mr A Rogers (acoustic) and Mr K Altman (civil engineer), expert evidence.

Mr A Southall QC, instructed by Mr Colin Taylor, Barrister. They called Mr A Colson, Mr B Meehan, Mrs S Reimann, Mrs V Wallder and Mrs C King to give lay evidence and Mr T Mark's (acoustics) and Mr Henry Turnbull, (traffic) expert evidence

It is proposed to extract ground water from an existing bore located on the site and transfer this water into two 90,000 litre water storage tanks. Water tankers will then remove water from the site for further processing elsewhere.

The subject site is part of a rural holding of approximately 48 hectares held in six lots, and one of these lots known as 471 Buffalo Creek Road is the site on which the utility installation will be located. The subject site is irregular shape parcel of approximately 17.5 hectares with a frontage to Buffalo Creek Road on its south west boundary. The land is traversed by a water race of 25 metres in width and various easements for the conveyance of irrigation water. The land has a frontage to an unmade road reserve on the southeast boundary and Buffalo Creek to its northeast boundary. There is a small rural property to the north west and the balance of the holdings are connected via a bridge over the subject creek. The proposal use is to be located in a large farm shed that will contain new water tanks for holding the water for collection by truck.

Section 77 Planning and Environment Act 1987

The land is subject to an Inundation Overlay (LSIO) and Wildfire Management Overlay (WMO). It is noted that these overlays are not relevant in this instance, as the use will be accommodated within an existing building on site without increasing potential risk from flooding or wildfire.

Clause 35.07-6 Section 2 Use in a Farming Zone

Learmonth Springs Pty Ltd v Yarra Ranges Shire Council [2002] VCAT 1043

1. Myrtleford Springs Pty Ltd applied to Alpine Shire Council for the development and use of the land in Buffalo Creek Road for a utility installation. Council refused that decision in December 2010 on a range of grounds primarily related to orderly and proper planning and amenity impacts in the area. The majority of the residents in Buffalo Creek Road have applied to be joined to this hearing through separate application primarily in support of council's decision. Having heard all of the submissions, viewed the photographs and video presentations by the parties we consider that the list of key issues or questions to be determined are as follows;
   • Scope of Proceedings.
   • The proposed use in a farming zone.
   • Compatibility with the Rural Living Zone in the surrounding area.
   • Impact on the amenity of the area.
2. The Tribunal must decide whether a permit should be granted and if so what condition should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and revisions of the Alpine Shire Planning Scheme we have decided that a permit should be granted for the proposed utility installation. Our reasons follow.

1. The objectors to the application represented by Mr Southall made submissions regarding the impact of the extraction of water from the bore and the impact of their ability to obtain water in the area. The Tribunal was taken to the decision of Learmonth Springs Pty Ltd v Yarra Ranges Shire Council [2002] VCAT 1043 which dealt with the two streams of legislation that deal with water extraction. One being the planning scheme which dealt with development and use of the land and the Water Act which was specifically established to deal with water in general and particularly in this case the extraction of ground water through a permit application process.
2. We are in agreement with the position put forward in Learmonth and considered that the potential impacts on water supply and stream flows are ones that are outside of the jurisdiction of this hearing and are separately addressed under the Water Act. Therefore, we would confine ourselves to the amenity impacts of the proposal as required for consideration under the provisions of the planning scheme.
3. The Tribunal was further informed that on the 18th of May 2011 Goulburn Murray Water Authority issued a licence to take and use water pursuant to clause 51 of the Water Act 1989, then set a maximum extraction rate of 0.470 Megalitres per day and an annual 68 Megalitre volume entitlement. This entitlement allows existing ground water allocations to be traded for the property up to a 68 Megalitre cap. Myrtleford Springs Pty Ltd has a temporary transfer of 34 Megalitres of water for the remainder of the year 2010 to 2011 season and the ability to trade for 48 Megalitres for the 2011 and 2012 season. At the time of writing of this decision, that permit has not been appealed.

1. We consider that Council has correctly classified the proposed use and development as a utility installation that falls into Section 2 of the Table of Uses to the zone and therefore requires a planning permit. A planning permit is also required to construct or carry out buildings or works associated with a Section 2 use and works to the shed and the new access and driveway therefore require a planning permit. The objectors strenuously argued that they consider that the proposed use and development was for an industry, however we consider that the Council's classification is correct.
2. We notice that the purpose of the Farming Zone is to implement the State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies, and the provisions go on to talk about providing use for agriculture and encouraging the retention of productive agriculture land. There is an emphasis on non-agricultural uses particularly dwellings being discouraged to ensure that they do not adversely affect the use of land for agriculture. The zone provisions encourage the use and development of the land based on comprehensive and sustainable land management practices and infrastructure provision and to protect and enhance natural resources and biodiversity.
3. We were informed that with the cessation of the growing of tobacco in the valley a number of the farms have been struggling to develop viable alternatives uses for their land. The permit applicants in this case will be using one of the titles for the land for water extraction and the balance of the property will continue to be used for grazing of cattle on improved pasture. We consider that this meets some of the tests set out in the zone in relation to maintaining the agricultural potential of the land. We consider that the use of utility installation will not adversely impact on the ability of the landowners to manage the property productively as the proposed use will have no impact on the surface of the land.
4. The guidelines that relate to the farming zone raise a number of issues particularly in the minds of the residents as to whether the development will support and enhance agricultural production or whether the development will permanently remove land from agricultural production. Also raised was the impact of the proposal on the natural physical features and resources of the area in particular on water volume and quality.
5. The impact on water quality was stated to be a major concern to the residents however we consider that now that a water licence has been granted and approved under the Water Act against the various tests set out in that Act that we are satisfied the extraction of water from the site in a form of utility installation is not contrary to any of these provisions. Therefore, the effect of extraction on ground water supply are matters not relevant or within the Tribunal's discretion for consideration under this permit application. The relevant authority in this instance is Goulburn Murray Water and they have assessed the application of a licence under the provisions of the Water Act.

Compatibility with the Rural Living Zone in the surrounding area

1. Buffalo Creek Road creates a boundary between the land to the east that is zoned Farming within which the subject site is located and to the Rural Living Zone to the west of Buffalo Creek Road. The Rural Living zoned land is generally higher and so the lots generally face down into the valley towards the creek and there are some lots that will overview the subject site. It is noted the majority of the agricultural production on the Farming Zone is beef cattle grazing and crop growing. These uses within themselves do generally create some levels of noise with truck movements including hay bailing etc.
2. The question then arises as to what level of amenity it is reasonable to expect in a Rural Living Zone which is opposite and across the road from a Farming Zone. Council in its submission went to great lengths to say that it strongly supported rural living zone in the area but the Tribunal considers that this should not be to the disadvantage of the farming zone that is on the other side of the road. Farmers in this area should have the ability to operate viable farms and if this involves the use of various forms of machinery and equipment and the movement of vehicles on Buffalo Creek Road subject to certain requirements this should be allowed to continue, as a fully legitimate component of farming. The expectations of the residents that these events would not occur puts the question mark over the original decision to zone one side of Buffalo Creek Road rural living with an expectation of a quiet tranquil lifestyle which could be in conflict with the farming zone on the opposite side of the road.
3. We consider this fundamental to our decision. The Rural Living Zone is one of four rural zones, with the Farming Zone, the Rural Conservation Zone and the rural Activities Zone. We consider that it is not reasonable for residents in the Rural Living Zone to expect to dictate how land use in adjoining farming land is conducted through to the use of rural roads by trucks. We further identify that Buffalo Creek Road is not within the Rural Living Zone, but between the Rural Living Zone and the Farming Zone. We consider that the use of the road by seven to ten trucks per day, or more than that is reasonable for a rural road in this area, both in terms of numbers and the capacity of the road to withstand the loads involved. We note that this was supported by both transport/traffic experts We consider that the demands of the RLZ residents in this case, essentially to eliminate trucks from Buffalo Creek Road is without merit.
4. There are two overlays that affect part of the titles to the property however the site of the existing shed is outside the area subject to inundation. The application was referred to the North Eastern Catchment Management Authority for comment and NECMA consented to the granting of a permit subject to conditions. With regard to the Wildfire Management Overlay, this does not affect the area in which the shed is located.
5. The council officer's report that was considered in December 2010 with regard to the interface between the farming and rural living zones acknowledged that this interface had the potential to cause issue and that in order to protect the amenity of those residing in the rural living zone it was considered appropriate to limit the number of trucks per day and the hours of operation of the installation.

1. Truck numbers proposed to service the proposed water extraction operation are on average in the order of seven to ten (or 14 to 20 vehicle movements) per day. On an annual basis, the number is limited by the permitted extraction volume, while in practice the number of movements is likely to vary on a daily or more likely a seasonal basis in response to demands for bottled water. It was claimed by the residents that in the time they have been settled in the RLZ this number of truck movements on Buffalo Creek Road has not occurred on a regular basis that there are currently fewer daily truck movements than this.
2. The residents stated that in the past truck movements were sporadic and mainly related to the tobacco and livestock industries. They proposed that the number of trucks would be excessive for the safety of other road users, particularly pedestrians, cyclists, and horse riders. It was also stated that the truck numbers would interfere with the tranquillity at the Carawah Ridge Bed and Breakfast establishment that is almost opposite the review site where prospective guests are promised a quiet and safe environment. We were otherwise informed by traffic expert John Kirikidis that there has only been one recorded traffic incident in the area and that this occurred near the intersection of Buffalo River Road and Buffalo Creek Roads, and that sightlines along the road and at that intersection are adequate. While it was inferred by the residents that site lines are inadequate at curves along Buffalo Creek Road this was not supported by evidence.
3. Considerable discussion during the hearing related to the operation of school buses. There is one school bus that travels along Buffalo Creek Road once on the morning between about 8.00am and 8.30 am (a quarter hour in each direction) and again in the afternoon from around 3.30pm to 4.00pm. There is potential for the times and use of the road to vary over time depending on demands. The permit applicant indicated willingness to ensure that no water trucks would use the road during those times when the bus would be on the road. We consider that this can be covered by permit conditions and we consider that the matter does not require further consideration.
4. We note that both traffic experts engaged to present to the tribunal indicated that the proposed volumes of truck traffic on Buffalo Creek Road is appropriate to a rural area, and that the dimensions of the road are adequate for the proposed use. There is adequate space to provide for turning circles at the intersection of Buffalo Creek Road with Buffalo River Road, and the required turnoff at the review property. While both are likely to require some road works to strengthen substrate and /or pavement this is not regarded by them to be an issue.
5. Mr K Altmann (Civil Engineering Expert) informed the Tribunal that the existing road is in sound condition and that there is evidence that of local widening has occurred in places within road improvement over the past two to three decades. He stated that road testing along Buffalo Creek Road has indicated that the road pavement is strong and able to withstand the trafficking of the proposed 'Pocket' B Double transports. The testing had been conducted by State-wide Geotechnical (Australia) Pty Ltd under instruction from Mr Altmann at 11 points along the Buffalo Creek Road from its intersection with Buffalo River Road. (One was discarded as being beyond the site). The results were presented to the Tribunal in a report dated 15 June 2011 together with Mr Altmann's supplementary report also of 15 June 2011 that stated that the test results match the observed road conditions. The results show that the road has been well constructed on generally good sub-grades, except at localised weakness near the Buffalo River Road intersection. He identified that the introduction of B Doubles will accelerate deterioration of the weak areas over a 'very restricted area' on the northbound lane that will carry water-laden trucks. Conversely, empty trucks on the southbound lane will not cause any material acceleration of deterioration.
6. A challenge was provided by one resident that testing had occurred on the 'lower' side of the road rather than the 'upper' side as indicated by Mr Altmann. However, Mr Altmann responded that if this was the case this would not alter his conclusion as the 'lower' side would more likely contain more compacted fill than the 'upper' side which would more likely be cut into the land and hence be on a more stable base.
7. Mr Altmann also indicated that it would be appropriate for the permit applicant to contribute a levy for the maintenance of Buffalo Creek Road. This would contribute 50% of the estimated maintenance cost of the return side of the road that will carry the water laden trucks. A once off payment of 50% of the cost for reconstruction works near the junction of the road with Buffalo River Road would also apply, as the current pavement there cannot cope with existing traffic and is failing. He considered an initial levy of $1.40 per load to be 'reasonably generous' based on the 2.5km of road that can be expected to require some rehabilitation work in 20 to 30 years. This initial levy could be indexed to construction cost index and adjusted annually, with annual payment to the Shire.
8. The accuracy of tube counts reported by Mr Kirikidis on volumes of traffic using Buffalo Creek Road was disputed by residents, who claimed the use to be substantially less than the stated 170 vehicles near the review site. However, in evidence Mr Kirikidis explained the process used and his confidence in the recorded figures. As we note that the objectors did not pursue the matter in cross-examination, we have no option but to accept the data put to us. We also accept the evidence of the traffic engineers that the recorded volumes are very low relative to the capacity of the road.

1. Acoustics experts Mr T Mark and Mr Andrew Rogers both agreed that no unreasonable noise amenity impacts are expected from the proposed use. This includes noise from truck use and from the pump in the water extraction and loading shed. Testing took into account all dwellings within 500m of the site, and information on equipment and the technique used were provided to the Tribunal. The assessments were made relative to the EPA Draft Noise From Industry in Regional Victoria Guidelines' and the EPA N-3 Interim Guidelines for Control of Industrial Noise from Industry in Country Victoria'. We note that that the noise guidelines do not aspire to eliminate noise, but to achieve reasonable levels,
2. The results recorded by Mr Rogers indicate that if site speed limits and a noise barrier at the review site are implemented the noise emissions from the plant will comply with the EPA guidelines. The proposed noise barrier would be three metres high and extend from the south-west corner of the shed for around 7 metres. The acoustic walls of the barrier will be of a solid impermeable material with a surface density of more than 15kg/m2 such as 31mm thick treated pine plywood.
3. Further while there is no noise requirements for trucks travelling on Buffalo Creek Road to and from the site, recordings confirm that the noise levels from pocket B Double tankers to be used would be no louder than existing traffic. In addition, the proposed water extraction pump will be submerged and such pumps operate quietly.
4. We have no basis to discount the noise evidence put before us.

1. A site inspection was not conducted. This was because we considered the decision on this matter to be clear-cut based primarily on policy matters relating to land use zoning and confidence regarding traffic and noise implications of the proposal. We were also assisted by the provision of photographs and a general personal knowledge of the district. We considered that a site inspection could not influence our decision.

1. A lengthy discussion was held regarding possible conditions to be imposed by the Tribunal should a permit issue.
2. A Code of Conduct for drivers of the Water tanker was put forward as a possibility, however we have concerns regarding the enforceability of such a condition and as we were advised that the trucks would be fitted with GPS equipment and two-way radios we consider that this Code is not required
3. We consider that it is appropriate to limit the volume of water to be extracted to that set by the water licence and this will in-turn determine the number of truck movements. The capacity of the trucks will also have an upper limit set by condition.
4. We consider that the provision of a suitable acoustic treatment, be it either a timber screen or sound mound, or combination of both, together with suitable landscaping, can satisfactory screen the shed and protect the occupiers of the adjacent dwelling (the current owners and future managers of the operation) to a suitable level.

1. There will be no unreasonable offsite impacts from this proposal, and subject to suitable conditions the application is approved.

Use and Development of land as a Utility Installation (bulk Water Extraction)

(1) The layout of the site and the size of the proposed use and buildings and works must be generally in accordance with the endorsed plans that form part of this permit. The endorsed plans must not be altered or modified (whether or not to comply with any statute statutory rule or local law or for any other reason) without the consent of the responsible authority and must include:

a) Details of the entrance arrangements to the site.

2(a) Before the development starts a road report must be submitted on the Buffalo Creek Road pavement and Buffalo Creek Road and Buffalo River Road intersection. The report must be prepared by a suitably qualified person and assess the suitability of the road pavement and width to accommodate higher mass limit 19m pocket B-Double trucks. The report must make recommendations on any works necessary to bring the road to a standard to accommodate the said truck size; this must include details of any widening or structural work. The road must be assessed between the intersection of Buffalo River Road and the entrance to the subject land.

2(b) That prior to the development starting any necessary roadworks as recommended by the road report required by condition 2(a) be completed to the satisfaction of the Responsible Authority, and that a legal agreement be entered into in respect of payment of a per-load levy to be determined on the basis of 25% of the total reconstruction costs including costs associated with service relocations, drainage culvert extensions and matching access points and being factored over a 25 year lifespan for such works. Such a levy shall be indexed to the construction cost index and adjusted annually, with payment to the Shire annually.

(3) Before the use commences the applicant must contribute 50% of the cost to upgrade Buffalo Creek Road and the intersection at Buffalo Creek Road and Buffalo River Road in accordance with any of the requirements of the road report required in Condition 2 to the satisfaction of the responsible authority.

(4) Before the development starts, a landscape plan must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

• A survey (including botanical names) of all existing vegetation to be retained and/or removed.
• Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.
• Details of surface finishes of pathways and driveways.
• A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.
• Landscaping and planting around the subject shed and new internal access road.
• The acoustic fence as required under Condition7.
• The means of watering/irrigation proposed to be used.

All species selected must be to the satisfaction of the responsible authority.

(5) The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, goods or commodities to or from the land;

(b) appearance of any building, works or materials;

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and,

(6) Noise emissions from the use and development must not exceed those required under the stricter of the requirements of either the EPA N-3 "Interim Guidelines for Control of Industrial Noise from Industry in Country Victoria" or Draft Noise from Industry in Regional Victoria.

(7) Before the use begins an acoustic fence must be constructed between the south west corner of the subject shed south to the property boundary in accordance with the requirements on page 3 of the Acoustic Report prepared by Noise Consulting & Management Pty Ltd dated 4 October 2010.

(8) Storage tanks must only be contained within the existing shed.

(10) No more than 68 Megalitres per annum may be extracted from the site.

(11) Truck movements to and from the site must only take place between:

Truck movements must not occur on Sundays or public holidays.

(12) No more than 10 truck loads (20 truck movements) of water are to occur in a single day.

(13) Truck movements must not occur on Buffalo Creek Road during school bus travel times on that road.

(14) No external sound amplification equipment or loudspeakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose.

(15) External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.

(16) The types of vehicles used to transfer water from the site must not exceed 19m in length (pocket B-Double) or a carrying capacity of 38,000 Litres.

(17) Within six months of the commencement of the use and public water standpipe must be erected at the entrance to the property to the satisfaction of the responsible authority. The standpipe must have the appropriate CFA fixtures so that it can be used by the CFA in an emergency.

(18) Silt fencing material or straw hay bales (staked and keyed into the ground surface) must be placed at the bottom of the construction area prior to the commencement of construction to prevent storm water runoff entering a drainage line. Batters steeper than 2:1 (horizontal: vertical) must have a layer of straw over the entire batter to retain the topsoil.

(19) An area for the storage of construction materials must be designated prior to the arrival of equipment and materials onsite. Wherever possible, disturbed areas should be used rather than areas of good quality indigenous vegetation and significant stands of trees. At the completion of construction all excess materials must be removed and the site should be regenerated to the satisfaction of the Alpine Shire.

(20) The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

(21) Before the development starts, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

• constructed
• properly formed to such levels that they can be used in accordance with the plans
• surfaced with an all-weather-seal coat
• drained
• clearly marked to show the direction of traffic along access lanes and driveways

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

(22) The loading of trucks must only occur within the shed.

(23) All car parking spaces and driveways must be designed to allow all vehicles to drive forwards both when entering and leaving the property.

(24) Access to the site shall only be at the nominated crossing shown on the endorsed plan tabled at the hearing and referred to as . The access must be constructed in accordance with VicRoads 'Guidelines for Truck Access to Rural Properties'. The crossing and road pavement works are to be constructed to the satisfaction of the Responsible Authority.

(25) The applicant must ensure no foreign material is carried from the site and deposited on the surrounding public roads by vehicles leaving the site.

(26) This permit will expire if one of the following circumstances applies:

1. the development and use is/are not started within two years of the date of this permit.
2. the development is not completed within four years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

(27) Any water extracted from the site must be licensed and metered to the satisfaction of Goulburn-Murray Water prior to the commencement of the use.

(28) G-MW requires that the number of truck movements are limited to the permitted annual volume licensed to be extracted from the bore.

(29) All construction activities must follow sediment control principles outlined in 'Construction Techniques for Sediment Pollution Control' (EPA, 1991).