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[2003] VCAT 15
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2003-01-09
Original judgment source is linked above.
Application under Section 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit; Delatite Planning Scheme; Rural Zone; Drug and alcohol residential rehabilitation centre; Effect of transient population on social cohesion of a rural community; Safety and well being as an element of amenity; Whether, upon objective analysis, apprehensions are likely to be realised; Social services and physical infrastructure requirements of drug and alcohol rehabilitation service; Net community benefit;
RESPONDENTS: Benalla Rural City Council (as successor to Delatite Shire Council), Don McFadden, Andrew Muller, Mary Elder and others
DATES OF HEARING: Monday 18 to Tuesday 26 November 2002
SUBJECT LAND: Lot 2 PS 145615 Kilfeera Road, Molyullah
MEDIUM NEUTRAL CITATION: [2003] VCAT 15
The decision of the Responsible Authority in relation to Planning Permit Application No. P/0102/00029 is set aside.
A permit is granted and the Responsible Authority is directed to issue a permit for the land at Lot 2 PS 145615 Kilfeera Road, Molyullah. The permit will allow:
The use of the land for the purpose of a residential alcohol and drug rehabilitation service in accordance with the endorsed plan.
It is directed that the permit contain the following conditions:
e. details of a sewerage and wastewater treatment system;
f. a landscape plan showing screen planting across the frontage of the land to soften the visual prominence of the "cottage" structure.
a. the parking area(s) shown on the endorse plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority; and
b. the screen planting and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.
ii) details of the complaint with name, contact number and address, if relevant;
iii) action to rectify the complaint and date of the action;
iv) details of subsequent contact with the complainant regarding the action to resolve the complaint.
v) a process and timeframe for the review of the Complaints Handling Procedure by senior staff and management.
b. a process and timeframe for the operator to consult with and consider solutions proposed by local community members to resolve any identified issues.
c. a process and timeframe for the regular submission of copies of the Complaints Handling Procedure to the Responsible Authority.
a. a community education program in relation to the operation of the use by Odyssey House;
b. land management practices including management of weeds and vermin, fire prevention, erosion control and stock control.
The management plan may be amended with the written consent of the responsible authority.
Disposal of Sewage, Sullage and Other Waste Water
a. is operated by Odyssey House Victoria or such other organisation as is to the satisfaction of the Responsible Authority; and
b. is operated as the entry stage therapeutic residential drug and alcohol rehabilitation program, known as "Genesis", unless otherwise approved in writing by the Responsible Authority.
Mr Michael Wright QC, with Mr John Atkins of Counsel, instructed by Bullards Solicitors. They called the following persons to give evidence;
* Superintendent Rodney Johns, Region 4 Division 4 Seymour;
* Antony McMahon, Chef and former Odyssey House client;
* John Griffin, parent of a former Odyssey House client;
* Jane Campbell, Manager of Odyssey's Hume Region, rural service;
* Associate Professor John Toumbourou of the Centre for Adolescent Health, Parkville;
* Mark Serong, Operations Manager Hume Region, Open Family Australia;
* Dr Michael Righetti, Lower Templestowe veterinary surgeon and parent of a former Odyssey client;
* Anthony Brand, Solicitor and former Odyssey client
* Russell Hawken Principal Engineer GHD - Water Technology;
* Beverly Kliger, Social Policy Consultant and Researcher;
* Greg Whippel, hobby farmer and Tullamoor's handyman;
* Maxine Cooper, Social Planner and Social Researcher
Mr Egils Stokans, Solicitor with Russell Kennedy Lawyers. He called evidence from Michelle Howard, Social Planning and Policy Consultant.
Although represented by Mr Stokans, the following respondent objectors were granted leave to make individual submissions; Bill Hill, Keith Gray, Mary Elder, Jeanette Knapper, Kathy Zoehout, Helen Hurley, Nicole Wolff, Andrew Muller and Don McFadden.
1. This was an application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision by Delatite Shire Council - as it then was - to refuse to grant a permit to use land in Kilfeera Road, Molyullah, for the purpose of a residential and non-residential drug and alcohol rehabilitation facility. A focus of this proceeding was the appropriateness of siting such a facility near to a small rural community comprising persons with sincerely held apprehensions about the impact of such a use on their sense of safety and well-being. Other issues raised concerned the adequacy of water supply to the land and whether the use was appropriately sited in terms of access to services and having regard to the policy objectives for the municipality's rural areas.
2. The application for permit was lodged with the Responsible Authority on 28 January 2002. Following the giving of notice of the application 46 objections were received, together with four petitions - three in favour and one against the proposal. The areas of concern expressed in the grounds for objection were summarised in the officer's report to Council as follows:
- Health, safety and security of Odyssey House program
- Effects on immediate neighbours, including noise, privacy, safety, security, property values
- Effects on the local community including fire risk and fire management, and intrusion and burden on the local community."
3. The application was also referred for comment to a number of local authorities including police, the local hospital, the local water service provider and the local water catchment authority. Responses were received from the hospital and from Goulburn-Murray Water. Neither objected to the application. The hospital confirmed the need for such a service. Goulburn Murray Water included a list of water supply and effluent disposal requirements within its letter of no objection.
4. A mediation conducted by the firm Offor Sharp and Associates was held on 25 March 2002 but failed to achieve any settlement.
5. At its meeting of 24 April 2002, the Responsible Authority considered the application and, consistent with its Planning Manager's recommendation, determined to refuse to grant a permit on the following grounds:
"1) The proposal fails to implement the State Planning Policy Framework and Local Planning Policy Framework requirements;
2) The proposal does not comply with the purpose of the Rural Zone and is contrary to the decision guidelines of the zone;
3) The proposal is an intrusion into a rural community and area;
4) The impact of the use is too great for a small close-knit community to absorb;
5) The proposal would diminish the amenity of the neighbouring properties in regard to the quietness, privacy and peaceful enjoyment expected in a rural area;
6) The concentration of persons with social problems in one location will inevitably cause incidents which will have some detrimental impact on the amenity and causing anxiety to surrounding residents;
7) The proposal would result in an unacceptable detriment to the amenity of nearby residents;
8) The applicant has not demonstrated how a potable and irrigation water supply can be achieved at the site adequate for the residential use of the land and the sustainable development of the horticultural development of the land;
9) The proposal has not demonstrated how the development will not adversely impact on the quality of water of the area;
10) The location of the proposal is inappropriate to service the regional need for the facility, a need which is generated outside the Molyullah community."
6. The application for review was lodged with the Tribunal on 28 May 2002 and the stated grounds for review are:
"1. The proposal to provide a residential and non-residential alcohol and drug rehabilitation service to its residents including children will provide a much needed service to the community of the Shire of Delatite.
2. There is no long term residential drug and alcohol treatment program within the Shire of Delatite.
3. The applicant has received community support and is responding to local community demand in setting up the proposed service in the Shire of Delatite.
4. The proposal implements State Planning Policy and Local Planning Policy Framework requirements.
5. The proposal to provide rehabilitation in a rural setting, providing training in a range of accredited competencies in horticulture and agriculture and property maintenance is in an appropriate within a rural zone.
6. The proposal will have no adverse impact upon the local community and area.
7. The proposal will not diminish the amenity of the neighbouring properties in regard to the quietness, privacy and peaceful environment expected in a rural area.
8. The applicant has considerable experience in drug and alcohol rehabilitation in a residential setting, accordingly the proposal will not cause a detrimental impact on the amenity of surrounding residents.
9. Adequate water supply exists to enable the residential use to exist in conjunction with the substantial development of farming on the site.
10. The proposal will not adversely impact on the water quality of the area."
7. At the commencement of the hearing and pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) Mr Stokans sought leave for Mr Bill Hill, a former Delatite Shire Councillor and farmer of Molyullah, to be made a party to the application. There was no objection to his being made a party and being also of the opinion that his interests could be affected, given the proceeding's focus on social integration, we ordered that he be made a party.
8. Except for Mr Hill and Mr Whipple, whose evidence in relation to the operation of a spring providing water to the subject land was given orally and on oath, all parties or their representatives that attended the hearing, as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the Tribunal's file. So too have the witness statements of the Rev. John Howard, the Rev. Thomas Rose, Mr Don Bartlett, Ms Brenda Rawlinds, Mr Raymond Sweeny, Mr Jack Quarry, Ms Moira Righetti, and Mr Brian Barrow. These witness statements were circulated by the permit applicant prior to the hearing. None of the parties sought to cross-examine these witnesses, so their evidence stands as uncontested.
9. This hearing was conducted over seven days. In the course of the first day at Benalla, we inspected the subject land and adjoining properties. We also toured through the wider area of Molyullah and visited the Molyullah recreation reserve located some 3km by road to the south-east of the subject land. Following the hearing we inspected the existing Odyssey House rehabilitation centre in Bonds Lane, Lower Plenty.
10. The subject land is located approximately 18km or a 12 minute drive eastward of Benalla on Kilfeera Road. The following description of the site and surrounding area is taken from Mr Whitney's witness statement which was also relied upon in the submissions of both Messrs Wright and Rantino. The words in square brackets are our own:
"The site is a property known as `Tullamoor' which is situated on the northern side of Kilfeera Road, Molyullah opposite the intersection of Kilfeera Road with the Molyullah-Tatong Road. It is part of, but on the outskirts of the tiny rural community of Molyullah.
The site is irregular in shape and has an area of 14.92 hectares with a frontage to Kilfeera Road of approximately 300 metres, and an overall depth of approximately 500 metres.
The property is undulating and attractive. It contains at its frontage, a homestead, separate accommodation quarters, garage, tennis court and swimming pool all in an attractively landscaped setting. The complex of buildings gives very much an impression of a tourist or bed and breakfast facility, specifically designed for multiple occupancy.
In the main the property is cleared grazing land with the majority of vegetation, including both native and introduced species, being concentrated around the homestead buildings. The land to the north of Kilfeera Road generally rises providing an attractive hill backdrop to the property. Adjacent properties are also generally cleared for grazing purposes. A relatively new dwelling, [owned and occupied by the Wolffs] in an elevated position is located on the property abutting to the east which looks down on the subject land.
South of Kilfeera Road, land drops down into the plains abutting Ryans Creek and the Molyullah settlement proper. Here a number of relatively small rural residential properties are located in close proximity and together with a sports oval and pavilion, form the core of the Molyullah community. Other than a CFA establishment close, and south of the subject property, Molyullah residents rely on the facilities of Benalla for their services and needs. Benalla is a 17km drive along Kilfeera Road to the west."
11. The proposed use of the premises was described on the application for permit as "residential and non-residential alcohol and drug rehabilitation service". Having heard the evidence of the witnesses called by Mr Wright we agree with him that the reference to non-residential services is unnecessary and we have accordingly amended the application for permit pursuant to Clause 64 of Schedule 1 of the VCAT Act.
12. It is proposed to use the land to house a self-contained, residential drug and alcohol rehabilitation facility for up to 15 clients with at least two qualified and experienced staff members present at all times and up to five staff all together. The facility would be operated by Odyssey House Victoria and the program to be offered is referred to as the Genesis Program.
13. As all parties and their witnesses accepted, Odyssey House is well credentialed in the area of drug and alcohol rehabilitation. Since 1980 Odyssey has operated a drug and alcohol rehabilitation service from its 15h site at Lower Plenty - formerly a seminary for the Blessed Sacrament Fathers. The services provided at this "headquarters" include the Genesis Program, which is a six to eight week introductory program for persons who may have recently moved out from detoxification. The site at Lower Plenty also provides other programs referred to as Action 1, 2 and Leaving or Stages 1 and 2 - which can follow completion of the Genesis Program. Stages 1 and 2 are less self-contained than the Genesis Program as they incorporate what were referred to us as community integration activities.
14. The Genesis Program at Molyullah would be targeted to meet the need for such a facility within the Hume Health Region. This region, as described by Mr Serong, extends from Wallan to Wandong in the south to Wodonga in the north and from Nagambie and Numurkah through to Mansfield and Corryong. We were advised by Mr Crosbie, the CEO for Odyssey House, that Odyssey is considering similar facilities in other regions for example in Gippsland and in the south-west.
15. The residential rehabilitation program offered by Odyssey House, including its Genesis Program, operates within what is referred to as the "therapeutic community model" . A description was provided at page 4 of Ms Cooper's witness statement:
"Therapeutic communities are deliberately structured in a way that aims to encourage responsibility and avoid unhelpful dependency on professionals. Members are seen as bringing strengths and creative energy into the therapeutic setting, and the peer group is seen as all important in establishing a strong therapeutic alliance ...
The day to day experience of living and working together, or social therapy, is considered as important an aspect of the treatment as formal therapy, and the structure is such that the two are closely integrated and inform each other ...
An important underlying principle is that all involved are encouraged to be curious about themselves, each other, the staff, the management structure, psychological process, the group process, the institution and everything else pertinent to events and relationship within the community. This is known as the `culture of enquiry' - an openness to questioning so that understanding is owned by all and not seen solely to reside in professionals. The structured attempt to raise the status of members and the all embracing `culture of enquiry' mean that therapeutic communities, whilst differing in detail between themselves, have a cohesive philosophy and aspire to be more than a setting where severely disturbed individuals can be contained while they undergo therapy. In addition, and related to this philosophy , staff in therapeutic communities receive day-to-day, on the job supervision of their work, in addition to other more formal supervision sessions.
... Therapeutic communities are effective in managing self-destructive and acting out behaviour, and at maintaining and managing boundaries. They also have clear and consistent rules, and responsibility for the management and maintenance of the rules is shared by the community as a whole, and not just the staff."
16. The evidence of Ms Campbell confirmed that there is an extensive referral and evaluation assessment period prior to any client being admitted to the Genesis Program. This is to test the client's willingness and suitability to be admitted into such a therapeutic community type program. We were also advised that a pre-condition of entry is that clients must be drug free upon admittance and are required to remain drug free throughout the program. Three times weekly urine tests are carried out on all clients to confirm this. Ms Campbell acknowledged that some persons might be admitted who are on low daily levels of Methadone (less than 20mg). An aim of their therapy is for their use to have ceased by program's end. Clients on Methadone would travel daily to Benalla in Odyssey's seven seater bus to obtain a daily dose from a Benalla chemist. None of the clients are permitted to have their own vehicle while on the site.
17. A "typical" daily schedule of structured activity and therapy sessions was included in Ms Campbell's witness statement and, as confirmed by the evidence of Messrs McMahon and Brand, the program is very strictly regimented with early rising and a busy day for all participants. Activities include regular therapy sessions and group discussions as well as domestic chores and household and property maintenance, including gardening and care of stock. More recreational, but nevertheless structured type activities, occur at weekends and every second or third Sunday afternoon, visitors may attend. These visits are carefully arranged and monitored. Visitors may arrive by private vehicle but can also be picked-up by the Odyssey bus from Benalla.
18. We were advised that clients are free to leave the program at any time and, based on experience at Lower Plenty, up to 30% may leave during the six to eight week program. There is an agreed process for such departures - including liaising with future care givers and in some cases notifying police, minders or other authorities. The departure process requires staff to drive a client to a place that is agreed to during the initial entry evaluation process. Once a client leaves, including walking off the property unaccompanied, the departure process is initiated and a client is not permitted to return to the program unless they go back through the entry assessment process. Clients are checked for their well being and whereabouts every two hours during the day.
19. It was Mr McMahon's evidence that the fact that staff will drive clients to their chosen destination means that there is very little likelihood of clients departing other than via the option of being driven - especially when the closest town, Benalla, is located about 17km away.
20. It was clear to us from the evidence of Ms Campbell, and Mr Allan, as well as Associate Professor Toumbourou that the self- contained nature of the Genesis Program means that there is no need for clients to make contact with or otherwise be involved in local community activities. Although, as submitted by Mr Wright,and confirmed by the evidence of Ms Campbell, Odyssey would not rule out such intercourse if it was felt that the local community would be agreeable and that clients would benefit. The therapeutic model which is intrinsic to the Genesis Program focuses on community building within the client group and with the staff and does not need to go further than this.
21. We were advised that at the completion of one, six to eight week program and before the start of another, the subject land might also be used for the training of staff and other regional health service providers, including weekend residential training sessions. The existing dwelling and cottage on the land provide a total of seven bedrooms most of which can accommodate two beds and some three beds. Accordingly, it would not be possible to accommodate more than 17 persons overnight. Having regard also to the size of the reception rooms - sunrooms, sitting and dining rooms - as depicted on the plans accompanying the application, we doubt that it would be possible to accommodate more than 20 persons for any training session.
22. At the completion of the Genesis Program clients may ask to be admitted into the Action 1, Action 2 and Leaving Stages conducted at Lower Plenty. Alternatively they may simply go home or into supported accommodation within or outside of the region. We were advised that Odyssey House has been provided with funds to operate five supported accommodation units within the region, including one in Benalla. These would be serviced by a non-resident Odyssey House worker at a ratio of one staff member per five units. We were advised that Ms Campbell, who is already resident in Benalla, is responsible for overseeing the establishment of linkages with existing health service providers, from which clients would be sourced and to whom clients would be returned upon completion of their Genesis Program. These agencies are located throughout the Hume Region and include, for example, Mr Serong's organisation, Open Family Australia.
23. The subject land is zoned Rural under the Delatite Planning Scheme. The Rural City of Benalla is the Responsible Authority for enforcing and administering this Scheme within its municipality.
24. The stated purpose of the Rural Zone at Clause 35.01 of the Scheme is:
"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To provide for the sustainable use of land for extensive animal husbandry (including dairying and grazing) and crop raising (including horticulture and timber production).
* 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.
To ensure that subdivision promotes effective land management practices and infrastructure provision."
25. A residential alcohol and drug rehabilitation service is not a defined term at Clause 74 of the Planning Scheme. The officer's report to Council suggested that such a use could fall partly within the nest of "accommodation" terms and also within the term "education centre". In his witness statement Mr Whitney accepted that the use could fall within the term accommodation but considered it appropriate to treat the proposal as an unspecified use namely, residential alcohol and drug rehabilitation service. We agree with Mr Whitney although we note that nothing much turns on this as both education centre, accommodation (other than a dwelling) and a rehabilitation service would all require a permit under Clause 31.01-2 of the Scheme.
26. Clause 65 of the Planning Scheme sets out decision guidelines which must be considered, as appropriate, before deciding on any application for permit. This clause commences with the following statement:
"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."
27. In other words an objective of the Tribunal's review is to establish whether the proposed use will produce an acceptable outcome in terms of the Scheme's decision guidelines. The decision guidelines at Clause 65 that are most relevant to this proposal are:
* The matters set out in Section 60 of the Act which includes, at Section 60(1)(b)(i), any significant social or economic effects of the use.
* The State and Local Planning Policy Framework including the Municipal Strategic Statement (MSS) and local planning policies.
* Any matter required to be considered in the zone.
28. Relevantly also for this application is Clause 11.01 of the State Planning Policy Framework which sets out the State Government's expectation that:
"Planning and responsible authorities will endeavour 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."
29. In other words, if in the course of our review it could be said that certain of the relevant objectives of the Scheme were in conflict, then we must ensure our ultimate decision favours an outcome that is sustainable and provides a net community benefit.
30. The substantive issues for consideration in respect of this application were briefly referred to above. The first is whether there is policy support for the siting of a rehabilitation centre of this type in this rural location some 17km or 12 minutes drive from Benalla. Allied to this is whether, in orderly planning or best practice siting and operational terms, it is appropriate for such a facility to be located in a small rural community unserviced by social and community infrastructure such as medical, legal and emergency services, public transport and family and community support networks.
31. The second consideration is whether the siting of such a facility at this location would have an unacceptable impact on the amenity of the area, including the sense of wellbeing and security that is enjoyed by persons living in the area. In this respect the respondent parties referred us to the description of the term amenity in the decision of the then Planning Appeals Board in Zerb and Anor v City of Doncaster and Templestowe 12 APAD 201. The Board, constituted by Mr S. Morris said:
"Amenity is an elusive but invaluable concept in town planning. The amenity of the neighbourhood is a complex of many attributes. It goes much further than mere `pleasantness' and `agreeableness'. In town planning terms it embraces all the features, benefits and advantages inherent in the environment in question."
32. It was put to us that many members of the Molyullah community are concerned at the prospect of having persons with a possible criminal background residing close by. It was submitted that these are reasonably held apprehensions - supported by media reports - and that the holding of these fears would constitute a detriment to their amenity, or sense of well being. It was also submitted that the advent of short term residents would have the significant social effect of undermining the Molyullah community's sense of social cohesion.
33. The final issue of substance related to water supply and effluent disposal. It was submitted by the respondent parties that existing supplies of water to the property would be insufficient to support the proposed numbers of persons and any horticultural activities to be conducted as part of the activities program. It was also submitted that if the supply was to be increased, this might unfairly reduce the supply to others in the community thereby compounding the social and economic impacts of the use. Finally it was submitted that the existing effluent disposal arrangement would be insufficient for the increased numbers of persons on the land.
34. A further concern for the respondent objectors in particular was the apparent inconsistency in the permit applicant's various descriptions of the proposed use. In particular; whether the facility was to provide non-residential rehabilitation services, and what these might be, whether clients would be drug free, whether staff would be on-site at all times, whether school age children were to be accommodated - thereby requiring access to local schools - and the extent or nature of the "horticultural" activities to be conducted from the land.
35. We agree that the local community had reason to be confused and we note Ms Campbell's acknowledgement of this when questioned on the matter under cross-examination. It would appear from the evidence of Mr Crosbie however that part of this confusion may have arisen due to the hasty preparation of the documentation accompanying the application for permit. This hasty preparation was due in part, we find, to the fact that a public meeting had been called prior to the application for permit being lodged with the Responsible Authority. It was Mr Crosbie's evidence that the Council Planner had suggested to him that he should put together an application for permit in time for distribution at the meeting. Mr Crosbie was told that it would not matter if the accompanying material was incomplete as this could be rectified later. At the meeting, which appears to have lasted for some hours, other operational matters were discussed. It appears that in response to this discussion Odyssey reconsidered various aspects of its operation.
36. In any case we are not persuaded that the permit applicants set out to deliberately deceive the local community and we accept that the hasty preparation and the Council Officer's subsequent advice to not hold any further public meeting may have prevented the opportunity to publicly clarify the permit applicant's intentions.
37. In any event, an application for review is not directed towards establishing whether the Council's decision or the procedures leading up to that decision were without fault. A hearing by the Tribunal is what is termed a hearing "de novo" or "afresh". The Tribunal in effect stands in the shoes of the Responsible Authority and makes a new decision. The purpose of a hearing is for the Tribunal to obtain all of the relevant facts and to hear and take into account the submissions of the affected parties. Where it thinks it appropriate, the Tribunal may also inform itself as it sees fit. That is to say, it need not rely on the parties putting all of the relevant material to it. Invariably, and this case is no exception, more material and argument will be provided to the Tribunal than was made available to the Responsible Authority at first instance. Furthermore, the evidence being relied upon is able to be tested by cross-examination. There was some inconsistency in the material supporting the application and other information later provided. We are satisfied however, that the application for review has provided an opportunity for these inconsistencies to be aired and resolved.
38. It was submitted by both the Responsible Authority and the respondent objectors that there is no policy support for the siting of an alcohol and drug rehabilitation facility in a rural location such as Molyullah. More particularly it was submitted by Mr Rantino that the local policy at Clause 22.12 of the planning scheme- which refers to rural housing and subdivision in rural areas - provides a basis for finding that such a use should be discouraged in this location.
39. By contrast the permit applicant, relying on the evidence of Mr Whitney, submitted that the Scheme is policy neutral in relation to facilities such as this. That is to say that the policy framework makes no suggestion as to the most appropriate location for uses of this nature other to suggest at Clause 11.03-6 that:
"Planning is to recognise social needs by providing land for a range of accessible community resources, such as affordable housing, places of employment, open space and education, cultural, health and community support (mental, aged, disabled, youth and family services) facilities. Land use and development planning must support the development and maintenance of communities with adequate and safe physical and social environments for their residents, through the appropriate location of uses and developments and quality of urban design."
40. It was submitted that in the absence of any policy direction, our assessment needed to apply first principles and simply ask, "Is this particular site an appropriate location?".
41. In Mr Stokans' submission, rather than being neutral the Scheme should be interpreted as being supportive of such facilities only in "an area or zone which is used mainly for housing". In this regard he relied on the State Policy at Clause 16.04-1, the objective of which is:
"To encourage the establishment of crises accommodation and community care units in residential areas and to ensure that their location is kept confidential."
42. At Clauses 52.22, 52.23 and 52.24, which refer to crisis accommodation, shared housing and community care units, it is stated that no permit is required for such uses where, among other things, they are in an area or zone which is used mainly for housing.
43. Mr Stokans contended that a residential rehabilitation facility is of a similar nature to crisis accommodation, shared housing and community care units. Because the site at Molyullah is not an area or zone used primarily for housing, it followed that the site was not an appropriate location for such a use. In Mr Stokan's, and indeed in Mr Rantino's submission, such facilities should be sited in Benalla proper or some other area developed more intensively for housing.
44. As noted in the course of the hearing the Presiding Member in this case was a member of an Advisory Committee established in the 1980's to consider the question of whether crisis accommodation, shared housing and community care units should be made "as of right" in some places - that is to say, able to commence operation without the need for a planning permit. A basis for establishing this Committee was to consider ways whereby such uses, of a moderate scale, could avoid the public notification and appeal process which, almost without exception, was delaying but hardly ever preventing their introduction. In the case of emergency accommodation the public notification process also served to highlight the location of these facilities, which was contrary to an important operational requirement for such services. Invariably the host community held misgivings as to the possible impacts that these uses might have on their sense of well-being and security. It was resolved however that provided the scale of such premises was kept at "domestic" levels they should be regarded as a legitimate activity in any area zoned or used primarily for housing. We are not persuaded that because such uses should be regarded as being a legitimate use in any residential area that it necessarily follows that areas zoned for housing must be the only places where such uses may locate. We therefore reject Mr Stokan's argument that Clauses 16.04-1, 52.55, 52.23 and 52.24 stand as support for suggesting that the proposed use is inappropriately located.
45. It was conceded by Mr Rantino that the basis of the Local Planning Policy at Clause 22.12 - Rural Housing and Subdivision in Rural Areas - is directed primarily towards the exercise of discretion in relation to proposals to subdivide rural zoned land and to construct dwellings on lots smaller than the minimum provided for in the Rural Zone. The subject application is for neither. He nevertheless submitted that the policy stood as evidence of a desire to ensure that rural production is not compromised by uses not associated with agricultural purposes and that primary producers are protected from complaints from non-agricultural land users concerned to protect their "residential" amenity rights.
46. We agree with Mr Whitney, in response to a question Mr Rantino, that although the policy is not directed towards the decision that we have to make, the basis of the policy is in accordance with sound town planning principles. As Mr Whitney put it, it "pretty much reflects other planning policies for example those relating to agriculture and it supports the purposes of the Rural Zone". Accordingly, whilst not specifically directed to the discretion that we are being required to exercise here, we nevertheless agree that the objective of ensuring that rural production is not compromised by uses likely to generate complaints based on perceived "residential" amenity rights, is an appropriate matter to have regard to. As it turns out we have not been able to be persuaded that this proposal would be in conflict with those objectives.
47. Mr Muller was concerned that the proposed use could jeopardise his ability to legitimately farm his land adjoining to the west of the subject site. In this regard he referred to his need to use herbicides to control weeds and to shoot and bait vermin. He was concerned also that Odyssey clients might inadvertently be the cause of fire due to incorrect cigarette disposal.
48. We have not been able to be persuaded that the use of this land in the manner proposed would be any more likely than its existing use as a dwelling and hobby farm to compromise Mr Muller in the pursuit of his legitimate farming activities. The evidence of the witnesses called by the permit applicants has persuaded us that persons undergoing the Genesis Program will be under a strict disciplinary regime with property maintenance being an important component of their activities. In many ways, given the engagement of a farm manager and the permit applicant's agreement to be bound by a condition requiring a management plan for weed and vermin control, fire protection, erosion control and stock control, that this property may indeed be better maintained than many others, given the number of persons to be engaged in its care. We note in particular the strict control over cigarette use and were persuaded by the evidence of Mr Brand that despite the existing location of Odyssey House, adjacent to the treed Yarra Valley parklands, there has never been an incident of wildfire attributable to Odyssey or its clients. In addition, with the intent to service clients from the region, it cannot be assumed that clients will be form urban backgrounds and unfamiliar with farming practices.
49. Mr Muller was also concerned about the extent and nature of horticultural activities to be conducted on the subject land. He questioned whether they might not conflict with his own agricultural activities.
50. Given the water supply issues to be considered later in these reasons we find it most unlikely that the sort of irrigated crop raising that Mr Muller appeared to be alluding to would go ahead on this land. In any case, crop raising is an as of right use within the Rural Zone and something which would need to be accommodated by Mr Muller should his neighbour - regardless of whether it was Odyssey House - consider themselves to be in a position to undertake. In any case also, we found the evidence of the persons called by Odyssey House to point to the horticultural pursuits being more in the line of gardening, or hobby farming than broadacre crop raising.
51. In many respects, and as we will expand upon later, the proposed use depends to a great extent on a rural or semi-rural location. It needs spacious surrounds and the opportunity for, among other things, soil based pursuits to enhance or underpin its therapeutic programs. Accordingly, and in view of our finding that it is not a use likely to detract from the legitimate agricultural pursuits of nearby property owners, we do not believe its establishment in a rural zone would be in conflict with any local or indeed State Planning Policies. We note also the specific reference at Clause 21.08-1, setting out strategies and objectives in relation to the Shire's agricultural economy. One of the strategies and objectives is:
"* Consider proposals for non-agricultural uses in rural areas when they are compatible with surrounding agricultural use and when they can be justified in terms of broader community benefits."
52. As noted above, we have been unable to find that this use would be incompatible with surrounding agricultural use. Indeed we find it entirely compatible and one that relies to a great extent on a rural or semi-rural location. As we go on to find later, we also believe that the use can be justified in terms of its broader community benefits.
53. The evidence of Ms Howard dealt partly with best practice siting for residential drug and alcohol rehabilitation facilities. In her opinion, siting such a facility within a small and mostly rural community without such social infrastructure as schools, health care, legal and emergency services and employment opportunities, was contrary to best practice. Her opinions in relation to what would be best practice were based on three case studies which she had undertaken in relation to residential rehabilitation services in Lilydale, Warrnambool and Cessnock.
54. A major flaw in Ms Howard's research was her failure to distinguish between Odyssey's Genesis Program, which she acknowledged is a "self-contained" rehabilitation program and the programs covered by her case studies which "incorporate community integration". We see little value in applying best practice siting principles for proposals relying on community integration to a proposal that is self-contained. At Part 2.2 of her report Ms Howard acknowledges that:
"Different levels of social infrastructure requirements are seen along different sections of recovery from drug and alcohol dependence. Most significantly, a separation from the client's former social network (which condone or support drug and/or alcohol dependency) is a key treatment initiative in the early stages after withdrawal. In general, client pathways along rehabilitation programs show a gradation of integration with outside facilities, from very little to increasing amounts of community integration."
55. It is clear to us that if Ms Howard had had the benefit of a case study of the Odyssey House suite of rehabilitation programs, she would have found, as we have from the evidence presented to us, that the Genesis Program is at the early stage of the "spectrum of recovery". At this stage, as acknowledged by Ms Howard, withdrawal from former social networks is a key treatment initiative. There is, we have found, very little need for the program to integrate with the community. In fact a sense of separation is or could be an advantage.
56. The later programs provided by Odyssey House in Lower Plenty have more in common, it would appear, with Ms Howard's case study. So too do the supported accommodation units which Odyssey will be servicing within the Hume Region. As stated by Mr Crosbie, these units will be located, without exception, in the more urban centres of the Hume Region.
57. When we say that we do not accept Ms Howard's opinions in relation to the need for access to various social services, this is not to say that we find such a facility requires total isolation. We accept that reasonable access to medical, legal, public transport and emergency services is important. In this regard we accept the evidence of Ms Campbell and Superintendent Johns that the subject site is sufficiently proximate to Benalla - at a 12 minute car drive - to be able to be described as having good access to the services offered there. Indeed it was Mr Crosbie's evidence that the time required to access the services on offer in Benalla would be little different to those at the existing Lower Plenty headquarters. Our inspection of the Lower Plenty site confirmed this.
58. To conclude on this issue, then, we agree that a self-contained residential rehabilitation facility should not be so isolated as to make day to day access difficult or time consuming in relation to services such as daily visits to the chemist for Methadone dosages or to legal services or for the purpose of delivering a client to public transport. Accordingly, a location at Jamieson or Licola for example would be entirely inappropriate. On the other hand, a facility such as this needs to exude a degree of detachment and would not be suited to a "downtown" location in either Melbourne or Benalla. It seems to us therefore that a location 12 minutes drive from town and in a not entirely isolated but yet pleasant rural setting such as Molyullah, is entirely appropriate.
59. In this section we propose to deal with the prospect of short term residents to Tullamoor undermining the social cohesion of the Molyullah community as well as the fears of existing residents about the possible impact of the use on their sense of security and well-being.
60. The transient or short term residential issue was one referred to by Ms Howard. In her opinion if a community becomes dominated by persons whose residency is of a short term nature - that is to say by persons unlikely or unable to establish long-term ties with the host community - not only can the social infrastructure of the host community be spread too thin, in order to support the needs of these transients, but the social cohesion of the host community can be undermined. Ms Howard listed some of the factors that are currently recognised as contributing to a sense of social cohesion:
* involvement in decisions that effect (sic) quality of life
* reciprocity and participation in co-operative effort
61. Ms Howard suggested that social cohesion is established over time through multiple interactions that build understanding and trust of the way members of a group function to support one another. We accept her opinion and note that neither Ms Kliger nor Ms Cooper had a different view.
62. Where we disagree with Ms Howard is in relation to her opinion as to the potential for the proposed use to undermine Molyullah's social cohesion. Ms Howard calculated that with the Genesis Program running for between six and eight weeks, with up to 15 new clients at the commencement of each program, that up to 100 "transients" would be injected into the Molyullah community over a year. This, in her opinion, could have an unsettling effect on the cohesion of the Molyullah community which currently comprises around 149 persons.
63. Ms Howard provided some case studies where large numbers of transients have been found to undermine the cohesiveness of a pre-existing community. However we found these case studies to not be comparable in any way with what is proposed here. The Wyong Shire on the New South Wales central coast is a rapidly changing shire - one of the fastest growing in the State - and it has a backlog of social infrastructure needs and major social problems (see page 13 of the Wyong Shire Community Plan 2002 provided by Ms Howard). The shire's population growth rate is three times the State and National average with the current population of around 135,000 projected to reach 200,000 by the year 2021. A significant concern for the shire is the isolation and relatively small size of local communities which will be affected by these significant increases, not only in terms of social cohesion but in terms of social and physical infrastructure.
64. In Byron Shire, the Council's Social Plan for 99/2000 observes that community services in Byron Bay cannot cope with the demands of the resident community, let alone the demands of a disproportionately large group of "transients" who pass through the shire. Particular impacts have been experienced in the areas of crisis accommodation and education. At page 7 of the Social Plan the most urgent needs of the transient population were associated with were perceived to be for basic survival - food, money, accommodation and health care including mental health care. We see no comparison between the impacts on Byron's resident population, and the needs of its transient population with the existing community at Molyullah and the needs of Odyssey's clients. Odyssey's clients will be fed and accommodated on site and their health and welfare needs, while in the program, will be met by Odyssey.
65. The final study referred to by Ms Howard was that of the London Borough of Harringey. This municipality has always experienced a high degree of population turnover but the scale of population mobility appears to have increased with around 10 percent of the Borough's population now being made up of refugees or asylum seekers. This represents 12 percent of London's 50,924 asylum seekers and there are substantial implications for local service providers including schools and temporary accommodation. Harringey is the twentieth most deprived district in England and nine of the wards of the Council are amongst the 10 percent most deprived in the UK. We accept that the level of transients in Harringey may be a significant contributor to its social deprivation. We do not agree that the Molyullah community and the likely impacts on that community due to the Odyssey House Genesis Program, are in any way comparable.
66. As Ms Cooper suggested the Genesis Program is a self-contained rehabilitation program which will operate more as a community within a community, relying on its own internal social cohesion as opposed to linkages with the Molyullah community or for that matter with the broader Benalla community. This being the case we doubt that the clients passing through the program would present as a series of individuals. Rather, the facility would present as an entity in its own right. A community of its own. We agree that the staff may be able to act as a go-between or link between the two communities. Although not full time residents they would nevertheless be in a position to establish longer term relationships with members of the Molyullah community and it was the evidence of both Ms Cooper and Ms Kliger that it would be beneficial if they did so. We do not see these staff as being likely to manifest as a drain on the social cohesion and social infrastructure of Molyullah.
67. To conclude then, we find that the transient or short term residency of the clients passing through this program would be most unlikely to undermine the social cohesion of the Molyullah community.
68. A more forcefully put argument on behalf of the respondent parties was that the proposed use would have a detrimental impact on the amenity or pleasantness of Molyullah. It was submitted by the local residents that an important contributor to the "amenity" of Molyullah - what makes it a pleasant place for them to live and work within - is the sense of security and well being that can be enjoyed there. Having regard to Ms Howard's evidence we think it open to find that this sense of well-being derives in part from the factors referred to above as contributing to a sense of cohesion namely trust, involvement in decision making, reciprocity, stability and a sense of belonging and worth.
69. It was put to us that for many in the community, this sense of security and well-being would be undermined knowing that a drug rehabilitation facility was located amongst them. It would be undermined, they submitted, because of an awareness that some of Odyssey's clients have or have had criminal backgrounds. A number of the local residents who made submissions to us reported on their present level of confidence about leaving dwellings unlocked and machinery unattended. In their submission such practices would need to be curtailed because of what they described as a reasonably held fear - based on information sources such as newspapers - that persons suffering from substance abuse have a propensity to engage in theft in order to fund their addiction. There was concern also that older or unprotected members of the community might be accosted by clients of the program who were out to steal drugs, vehicles, or valuables in order to purchase drugs.
70. We were referred by all parties to the suite of Tribunal decisions commencing with that of Hand v City of Broadmeadows (1973) VPA 66, 68 where the then Tribunal suggested:
"Amenity may be affected not only by physical factors which are repugnant or offensive or unpleasant to the senses but also by a mental aversion to factors in the surrounding area, so long as that mental aversion is one which can be held by an ordinary reasonable man."
71. These cases, dealing with the psychological aspect of amenity, refer for the most part to funeral parlours and brothels. In general terms and to varying degrees, the Tribunal has accepted that it is not unreasonable for members of the community to be sensitive about particular uses and that the amenity of a place can be undermined or detrimentally affected by the inappropriate siting or design of such uses.
72. In the case of M. Brooke v City of Brighton 4 PABR 50, the Board observed, and we think it still holds true, that it would not be appropriate to locate an undertaker's parlour in full view of a hospice for the dying. The basis for this would be that it is an insensitive siting or juxtaposition of uses which could undermine the pleasantness or amenity enjoyed by residents or other users of the area.
73. Mr Wright sought to argue and we agree with him, that what might be a reasonably held sensitivity in one decade may not be as sensitive in another and he suggested that the decisions of a Town Planning Tribunal will necessarily reflect such changes.
74. As confirmation of this we can think of the decision in Barrymore Nominees Pty Ltd v Ringwood City Council (91/115 unreported) which was a decision of the Presiding Member in the present proceeding. In that case the Tribunal granted a permit for a business sign advertising a vasectomy clinic. Ten years previously the Tribunal, differently constituted, had refused a permit for an almost identical sign for the same clinic on the Maroondah Highway. The 1981 refusal was based on a finding that the message was too "blatant" and could cause embarrassment to the respondent objector to that proceeding. In granting a permit in 1991 the Tribunal observed that:
"The ten years has made a difference in the community's acceptance and/or exposure to `blatant' messages."
75. As noted by Mr Wright such sensitivities, whether or not they change over time, have had more to do with the use itself or rather the community's reasonably held sensitivities about the use. As such they could be distinguished, he contended, from the subject case. In the subject case the focus of concern lies with a possible impact of the use rather than with a sensitivity to the use itself. As such it is capable of more objective analysis - will the impact occur - compared to the more socio-cultural issue of why the community might be sensitive to a particular use.
76. It was not put to us that the Molyullah community holds an aversion to drug and alcohol rehabilitation facilities per se. Indeed most were supportive of such facilities especially in established residential areas. Rather the concern was with a perception about the impact that such a facility might have. That it might bring about an increase in crime rates which in turn would undermine the current perception of Molyullah as a pleasant place to live.
77. In Mr Wright's submission, if it could be demonstrated that an increase in the crime rate was unlikely, then it could not be said that the amenity of the area would in fact be affected. In contrast it was Mr Stokan's submission that even if the community's fears proved ultimately to have no basis those fears, if honestly and reasonably held, should be sufficient to defeat an application on amenity grounds. We are not persuaded that Mr Stokan's approach is one that we should follow. We agree with Mr Wright that we must take an objective view and look to the evidence as to whether this residential rehabilitation facility operating in the manner put to us would indeed result in the sort of impact which the respondent objectors are afraid of.
78. We could find nothing in the evidence put to us in the course of this seven day hearing to suggest that the concerns expressed by the residents of Molyullah will be realised. The nature of the program, the selection process for clients and the provision made for exiting or leaving the program, together with the lack of any evidence to support the contrary in relation to the existing premises at Lower Plenty or similar premises elsewhere, all combine to demonstrate that the prospect of any risk for existing residents is infinitesimal.
79. Whilst there may well be persons admitted into the program who have interfaced and are even still connected with the criminal justice system, these persons will, at the very least, have been released on bail. As such they cannot be said to be regarded as so great a threat as to require incarceration. They are entitled to be accommodated within the community at large.
80. It was the evidence of Messrs Allan and Brand that unlike in the early 80's when Odyssey personnel would often attend lock-ups and offer Odyssey as a bail option, clients must now be released on bail before seeking admission to Odyssey. Furthermore, such clients must now run the gauntlet of Odyssey's quite stringent admittance program with Odyssey maintaining the option to reject unsuitable clients. That is to say, persons unsuitable for the clearly quite rigorous therapeutic program offered by the organisation, as well as the programme's drug testing and regular monitoring of a client's whereabouts, will not be accepted.
81. The admittance program establishes where persons will be taken if they decide that the program is not for them and it was clear from the evidence of Mr McMahon, among others, that clients who found themselves disenchanted or otherwise unable to follow the program would be far more likely to take the easy option of being driven to their destination than to walk out onto Kilfeera Road. These clients will have been tested three times weekly for drugs and we were provided with no basis for believing that persons, even if they should determine to leave the program without the benefit of a lift to town, would be in the sort of distorted mindset that might lead them to cause disquiet in the minds of residents of Molyullah, should they come into contact with them. Indeed the evidence of Professor Toumbourou was that clients that do reoffend do so well away from a rehabilitation facility as they are able to maintain a respect for the facility and its residents. Moreover, we were very much persuaded by the evidence of Mr Crosbie that, perhaps even more so than the residents of Molyullah, the therapeutic environment created within the Odyssey Program is directed towards ensuring that the clients feel safe, secure, and welcome and above all, feel safe from the presence of drugs. As stated by Mr Crosbie "mostly people use drugs because they have huge fears and it is the responsibility of the therapeutic environment to make everyone in it feel safe".
82. As confirmation of the unlikeliness of the Molyullah community's fears being realised, there is the evidence of Odyssey's operation at Lower Plenty facility. Little evidence was provided to us which would suggest that since its advent in the early 1980's the fears expressed by the then residents of Lower Plenty in relation to their own safety, security and sense of well-being have ever been realised. The evidence of Superintendent Johns, who has liaised with police in the Lower Plenty area as well as with the Assistant Commissioner in Melbourne, showed no incidents within the Lower Plenty area that could be attributed to clients of Odyssey House. Likewise the evidence of Dr Righetti demonstrated how, despite initial fears, his veterinary clients no longer express concerns in relation to Odyssey House's operation or their perceptions of safety in relation to clients of Odyssey House. In addition the interviews undertaken by Ms Kliger indicate any ongoing concerns in relation to safety and security and the safety of children using the bike path would be more to do with bike paths than to the existence of Odyssey adjacent to the bike path.
83. The only material sought to be relied upon as evidence that the local community's fears were well founded were the newspaper articles provided by Mrs Elder and which was put by Mr Stokans to a number of witnesses called by Odyssey. Consistently, when this material was put to persons in a position to comment upon their voracity, they were found to provide very little support for the respondent objectors' fears. This is not to say that we do not accept that newspaper reportage can and indeed often does aim to stir up emotions, but we agree that very often this stirring up is with a view to selling newsprint, regardless, sometimes, of accuracy. It would be a sad day if this Tribunal was to condemn a proposal solely on the basis of newspaper journalism.
84. We acknowledge that in finding that the community's apprehensions are not soundly based is not to say that the people who presently hold those fears will rid themselves of these overnight or perhaps ever. Indeed, as was the case in Lower Plenty, it may take time for the apprehensions of some individuals to be assuaged. That is not a reason however for us to find that a permit should be refused. In fact, having regard to the seemingly almost universal misapprehension about such facilities, if we were to be persuaded by them it would follow that such facilities could hardly ever find a home. This, we suggest, would be to the very great detriment of the wider community as clearly, and as all parties agreed, the drug and rehabilitation service offered by Odyssey House fulfils a very real community need.
85. The final issue of substance in this application for review was the sufficiency of the water supply, having regard to the greater demand which a community of 15 clients plus associated staff and horticultural activities would generate. Also at issue was the question of whether the land is capable of disposing of the additional effluent likely to be generated by such an increased number of occupants.
86. On the subject of effluent disposal, we were provided with no evidence to suggest that this site of some 14ha is not capable of treating effluent on-site in accordance with the Sceptic Tank Code of Practice or by some other system approved by the EPA. Indeed the only evidence put to us in this regard was that of Mr Hawken and it was his opinion; "that it is likely the estimated domestic waste water volumes from the residences could be treated by sceptic tanks and effluent disposed of by ground absorption trenches, within the property".
87. As Mr Rantino correctly observed, this issue, while certainly a matter needing to be addressed, is one that can be addressed via appropriate permit conditions. It was the evidence of Mr Hawken that the existing effluent disposal systems need upgrading. This being the case we accept that a condition should be included requiring upgrading to an appropriate level to meet the anticipated demand.
88. On the matter of water supply, Mr Hawken was requested by the permit applicants to undertake what he referred to as a feasibility study to determine the feasibility of supplying water for stock and domestic use. It was his expert opinion that it would be feasible. He made it clear in the course of giving his evidence that he had not gone the next step of deciding or recommending what an optimum supply or treatment system would be. He pointed out however, and we agree, that his determination of feasibility was based on an inherently conservative approach as to the likely on-site demand for water.
89. His worst case scenario was that the proposed use could require 4mgl of water per annum. This was based on an assumption of 20 full-time residents, 20 head of beef cattle plus water for house and garden purposes, including the swimming pool. The assumptions are conservative because, as advised by Mr Crosbie and other witnesses employed by Odyssey, the six to eight week Genesis Program would not be run continuously and there is, in any case, a likely drop-out rate of some 30% as confirmed by Associate Professor Toumbourou's evidence and the evidence of other Odyssey staff. There may however be training programs between Genesis intakes, and we have taken this into account.
90. Mr Hawken's assumptions were also based on stock demands for cows with calf which are inherently high, according to Department of Natural Resources and Environment publications. His assumptions were also based on Benalla household water consumption data which is acknowledged to be high within the region due to leakage within the system and to the fact that parkland watering is including in the data totals.
91. In the course of his evidence Mr Hawken referred to the very many water saving options that exist and which, if necessary, could be adopted for this use. These include water saving devices for showers and washing machines, the recycling of grey water for toilet flushing and garden watering, the use of swimming pool covers and the like. It was his evidence also that North-East Water, the local water authority, had advised that it would be "keen to participate and use Odyssey House as a model for elsewhere in the region for water re-use and water conservation measures". It is useful to observe here also that grey water recycling has the added benefit of reducing the amount of waste water effluent to be disposed of.
92. It was Mr Hawken's opinion that the 4mgl per annum worst case scenario would comprise 3.3mgl for domestic in-house and outside use with 0.7mgl for stock. In his opinion this 3.3 mgl per year for 20 year persons could be reduced to 1.85 mgl having regard to Melbourne Water figures, the inherent excesses in the Benalla data and the prospect of water saving devices. A further reduction to 1.5mgl could result from grey water re-use and, as already noted, the stock calculation is based on constant cow with calf numbers.
93. We were provided with evidence that Odyssey House has an entitlement of 2 mgl per annum from Ryan's Creek. It was suggested by the respondent parties that this allocation may be required to be shared with other lots forming part of the original Tullamoor property. The Goulburn Murray Rural Water Authority annual diversion licence No. 759252 disproves this. It confirms that Odyssey, as owner of Lot 2 of Part Crown Allotment 11, is entitled to a 2mgl allocation.
94. We are also persuaded, having regard to Goulburn Murray Water's letter of 18th of February 2002 to the Council's Planner, and as later confirmed by personal communications between Mr Hawken and Goulburn Murray Water, that "an additional 1 to 2 megalitres of water rights ... should not be problematic". We accept, as acknowledged by Mr Hawken, that this may need to be restricted to removal during the winter period and then stored on site in either tanks or a dam. The fact that the recently constructed dam has not been finished with a clay liner is no reason we think for not accepting the feasibility of it being made capable of providing useful storage. Moreover, additional water storage tanks could always be added.
95. Then there is the question of the spring. We agree that it is reasonable to assume, in this severe, Australia-wide year of drought, that the spring on the Wolff's property, to which Odyssey house has a legal entitlement, may be running at a lower than usual flow rate. We found the evidence of Mr Whippel to clearly show that the spring has not ceased to flow. We would nevertheless accept that at the time of his and Mr Hill's inspections, it may not have had sufficient velocity to cause the water to enter either the Wolff's tanks of the Tullamoor Park tanks. We also think it reasonable to conclude that due to the Wolffs having taken up residence in the last four years, Mr Roache's assertion, in his letter of 24 November 2002, that he had always had an adequate potable water supply from the spring and that "at no time did the spring ever dry up or fail to provide water" may warrant review. It was Mr Roache's assertion that since the Wolffs had built their home this had not made "any difference to the water supply to our property even though we share the same waterline". We accept however that since the Roaches took up residence there has not been a drought of the magnitude now being experienced.
96. The fact that there has not been any water meter on the spring supply makes it difficult, as pointed out by Mr Hawken, to establish what reliance is placed by the property on this source of supply. We nevertheless accept the evidence of Mr Hawken that even if the spring flow varies during the drier years, that it would still be feasible for a potable supply to be provided, including by means of a bore, to serve the increased needs of this property. Furthermore, as noted by Mr Crosbie, in the event of a crisis year or period, the proposed use is far more capable of abandonment for one or two programs than might be the case, for example, if the premises were to be used for full-time residential occupation.
97. To conclude therefore, we agree that as with any use of the land it is important to be assured that an adequate water supply is available or that it is feasible to make such provision. We have been persuaded by the evidence of Mr Hawken that such a supply is indeed feasible. We are also persuaded that this can be provided without undue impact on other users in the area. The supply of water in a water catchment is in some sense finite. As one of many users Odyssey will be sharing the supply with others. We have not been able to be persuaded however that the Ryan Creek water catchment is at such a critical level that it cannot support the advent of an additional ten to fifteen residential users, in addition to Tullamoor's present residential and farm use.
98. Our reasons for decision would not be complete without reference to some other perhaps less strongly argued concerns that were also raised. These could be summarised as overlooking concerns and traffic concerns. In relation to the latter issue it was submitted that the site's location at the intersection with the Molyullah Tatong Road could be problematic in traffic safety terms if the number of vehicles accessing the site was to increase substantially.
99. We were provided with no real evidence to suggest that there could be traffic safety difficulties and our inspection did not persuade us that this intersection is a particularly problematic one. The fact is also that residents or clients will not have access to their own cars, relying instead on the Odyssey House van. Moreover,there will be staff vehicles and on occasional Sundays, the arrival of family visitors. The existing driveway and turnaround to the front of the main house plus the drive to the rear make for useful access arrangements and there is room on the property for the parking of staff and visitor vehicles. Accordingly, there is little or no need to park on the Kilfeera Road which, we agree, would present problems.
100. On the matter of overlooking it was suggested by the Wolffs that persons enjoying themselves in the swimming pool area and on the tennis courts might be able to obtain views of the Wolffs or their guests when also enjoying themselves on the substantial deck at the front of their dwelling. It was suggested that this might upset Odyssey's clients, particularly if the Wolffs were seen to be drinking alcohol. Likewise the Wolffs were concerned that they might feel somewhat restricted in their ability to drink outdoors or otherwise to take advantage of their delightful outdoor living space.
101. Apart from observing that if there is any opportunity for overlooking this has been a long established condition between the two properties, we accept that the distances involved are not such as to suggest an invasion of privacy. Furthermore we accept the evidence of Ms Campbell that the therapeutic program offered by Odyssey House is able to address any difficulties that a client may have in regard to being confronted by persons consuming alcohol. If Odyssey House has no problem with this, then we see no reason for it to be justification for a refusal of permit.
102. Ms Hurley expressed concern also that the front cottage has a verandah which is in full view from the property on the opposite side of the Kilfeera Road. She suggested that constant occupation by a frequently changing group of people was not an outcome that she felt comfortable about. Having inspected her property we agree that the front cottage is somewhat exposed to view from the road. In urban design terms, and having regard to Odyssey's desire for a degree of isolation, we think it appropriate to supplement the front setback landscaping. Greater use of trees and shrubs along the front would, we accept, reduce the impression of persons at the cottage being "on display".
103. Our own experience, confirmed by the article provided by Ms Cooper from the journal of The American Planning Association, is that it is not at all unusual for an existing community to be apprehensive about the arrival of a new or different social group. This apprehension can be at the level of a single household, concerned at the prospect of a new neighbour, or it can be at the level of a neighbourhood or other small community - particularly a socially cohesive, small rural community such as Molyullah. The prospect of having to modify past practices in order to accommodate newcomers can be both disquieting and daunting.
104. The statutory planning process is directed, among other things, towards ensuring that future uses of land can be accommodated without undue impact on the environment or on the community's existing social, physical and economic support services or infrastructure. It is a relevant consideration also to ensure that the social impact of any change - that is to say the ability of the host community to accommodate that change - can be met. In part this is why in town planning terms reference is often made to "managing change". It is seen as desirable that the rate of change in a particular community can be capable of being accommodated by the host community. We would even go so far as to say that this is why there is such an emphasis in present day planning on ensuring that new development respects the character of a neighbourhood. This is so that where change occurs within a neighbourhood it will occur more through a process of evolution than revolution. This is seen to be less threatening for the host community, albeit that that community might recognise the inevitability of change in its built and cultural environment.
105. So the community of Molyullah is not at all different to many other communities in so far as it harbours apprehensions about the possible implications of having a drug and alcohol residential rehabilitation facility located adjacent to it. The evidence has suggested to us however that this community is also just as likely to be no different to others that have started out apprehensive and have ended up by finding that their fears were unfounded. This apprehension is, we have no doubt, honestly held. However from the evidence we have also been left in no doubt that it will prove to be unfounded.
106. The evidence pointed to a real need for such a facility within the Hume Health Region and indeed an active demand for such a service by the local health service providers. The Odyssey House program is one which no party suggested was not an effective service to meet the needs of the region. The experience at Lower Plenty demonstrates that a spacious, semi-rural environment is one that works well for the sort of therapeutic community based programs that lie at the centre of Odyssey's approach. It follows, we think, that a `down town' Benalla, Wangaratta or Shepparton location or a confined site would not be suitable to meet the community's needs. The evidence suggested that an extremely isolated location would be inappropriate also. It seems to us therefore that the location at Molyullah has much to commend it. Balanced against this is an apprehension, on the part of a not insignificant number of members of the local community that a certain feeling of security and well-being, which makes this locality special for them, might be undermined. It is our conclusion however that provided the facility operates in the manner described to us, and we will include conditions to that effect, that the community's fears are unlikely to be realised. We find therefore that the grant of a permit will provide a land use outcome that will be sustainable for the long term and that will result in a net community benefit.
Odyssey House Victoria
Benalla Rural CC & Ors [2003] VCAT 15