The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for a dwelling, a shed and the removal of native vegetation at 41 Ellandee Crescent, Macedon generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development or the removal of native vegetation commences:

(a)

amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(i)

Dimensioned plans and elevations of the proposed dwelling and shed;

(ii)

A schedule external materials, colours and finishes, to assure that buildings;

(iii)

The on site waste water treatment system proposed in accordance with condition 1(c);

(iv)

Stormwater drainage;

(v)

The layout and construction detail of the proposed access driveway and vehicle crossing.

(b)

A vegetation management plan setting out the measures to be implemented for the proper management of on sit vegetation must be submitted to the Responsible Authority and be to the satisfaction of both the Responsible Authority and the Department of Sustainability and Environment. The plan must include, the identification of vegetation to be removed, measures for the protection of vegetation during construction and measures for the control of weeds. The plan must not be revised without the consent of the Responsible Authority and Department of Sustainability and Environment. The Management Plan must be implemented on an ongoing basis by the owner.

(c)

A design, including plans and specifications, for an on site waste water treatment system generally in accordance with the submissions and evidence of Mr Bruce Hollioake, Civil Engineers in VCAT Application P3578/2004 must be submitted to the Responsible Authority and be to the satisfaction of both the Responsible Authority and Southern Rural Water & Western Water. Prior to the occupation of the permitted dwelling the satisfactory on site waste water treatment system must be installed and be operating to the satisfaction of the Responsible Authority and Southern Rural Water & Western Water.

(d)

A management plan setting out the measures to be implemented for the proper management and operation of the on site waste water treatment system must be submitted to the Responsible Authority and be to the satisfaction of both the Responsible Authority and Southern Rural Water & Western Water. The plan must not be revised without the consent of the Responsible Authority and Southern Rural Water & Western Water. The Management Plan must be implemented on an ongoing basis by the owner.

The design and the management plan referred to in (c) and (d) above must form part of any permit application under Part IXB of the Environment Protection Act 1970.

2 The development hereby approved must be in accordance with the plans endorsed under this permit. The development shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3 All earthworks authorised by the Permit shall be undertaken in a manner which will minimise soil erosion, and in accordance with the Environment Protection Authority publication 275 "Construction Techniques for Sediment Pollution Control", May 1991, to the satisfaction of the responsible authority.

4 The permitted dwelling must be connected to reticulates sewerage when reasonably available to the land.

5 If the driveway from the road to the dwelling and water supply, including gates, bridges and culverts, is greater than 30 m long:

(a)

It must be designed, constructed and maintained for a load limit of at least 15 tonnes and be of all weather construction; and

(b)

It must provide a minimum trafficable width of four metres and be clear of encroachments four metres vertically.

6 If the driveway is greater than 100 metres, it must provide for the turning of fire fighting vehicles close to the dwelling, by either:

•

The provision of a turning circle with a minimum radius of 10 metres;

•

By encircling the dwelling; or

•

The provision of a "tee" head or "wye" head with a minimum formed surface of each leg being eight metres length measured from the centre point of the head, and four metres trafficable width.

7 Curves in the driveway must have a minimum radius of 10 metres.

8 The average grade must be no more than 1 in 7 (14.4%) however an absolute maximum of 1 in 5 (20%) is allowed for a maximum of 50 metres.

9 Dips must have no more than a 1 in 8 (12.5%) entry and exit angle.

10 A minimum of 10,000 litres on-site static storage must be provided on every allotment and be maintained solely for fire fighting.

11 The water supply must be within 60 metres of the outer edge of the dwelling (including obstructions).

12 Adequate access for the fire brigade vehicles must be provided to within four metres of the low water mark.

13 The water supply should be readily identifiable from the building or appropriate signage must point to water the supply.

14 If the water supply is above ground:

(a)

It must provide at least one 64 mm, 3 thread/25 mm x 50 mm nominal bore BSP, round male coupling to CFA specifications,

(b)

All pipe work and valving between the water supply and the outlet must be no less than 50 mm nominal bore, and

(c)

If less than 20 m from the dwelling, each outlet must face away from the opposite side of the water supply.

15 All below-ground water pipelines must be installed to the following depths:

(a)

Subject to vehicle traffic B 300 mm.

(b)

Under houses or concrete slabs B 75 mm.

(c)

All other locations B 225 mm.

(d)

All fixed above ground water pipelines and fittings, including water supply, must be constructed of non-rust and protected from the effects of heat.

16 This permit will expire if the development hereby permitted is not commenced within two years of the date of the permit or completed (and the use commenced) within four years of the date of the permit. A written application may be made to the Responsible Authority for the extension of the permit prior to the permit expiring or within three months after the expiry of the permit.

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.

Ms Fiona Slechten, Town Planner. MS Slechten called Mr Bruce Hollioake, Civil Engineer

Ms Sally Macindoe, Solicitor. Ms Macindoe called Dr Nicholas O'Connor, Aquatic Ecologist,

1 Stephen and Nicole Park wish to develop a dwelling for their family on an unsewered lot at 41 Ellandee Crescent Macedon. The land is within a rural zone, and a potable water supply catchment. The Parks proposal for a dwelling is opposed because of the risks associated with the establishment of additional septic tank systems within water supply catchments. The Responsible Authority issued a Notice of Refusal to Grant a Permit, for reasons which are set out in the Attachment 1.

2 The parties and the witnesses at the hearing of the application for review relied on both written and oral submission and a number of photographs, plans and other documents were tendered to the Tribunal. At the conclusion of the hearing I requested the Responsible Authority to provide additional information in relation to the restructuring of the Pine Acres Estate. The Responsible Authority provided the additional information, and submissions in response were received from the other parties to the application for review.

3 The subject land is an irregular lot with an area of 1.709 hectares. The land is covered by native vegetation (and weeds), and an ephemeral drainage line, a tributary of Slatey Creek, traverses the eastern part of the subject land.

4 The land is approximately 4 kilometres north of Rosslynne Reservoir and approximately 650 metres upstream of the point in which Western Waters transfer pipeline from Macedon Reservoir flows into Slatey Creek.

5 The subject land forms part of the Pine Acres Estate created in the 1920's, and which has been the subject of restructuring in accordance with a plan probably dating from the 1970's. The subject land is a restructure lot derived from the consolidation of four lots from the original subdivision.

6 The Pine Acres Estate has essentially been developed as a rural residential area with houses set within remnant bushland on lots generally less than 2 hectares in size.

7 The subject land falls within the Special Water Supply Catchment of the Rosslynne Reservoir. Under the provisions of the Macedon Ranges Planning Scheme, the land falls within a Rural Zone (RUZ3). It is also affected by Environmental Significance, Restructure, and Wildfire Management Overlays. The Environmental Significance Overlay (ESO5) relates to the significance of other water supply catchments and the relevant statement of environmental significance is:

Regional water catchments are located throughout the shire. The protection of catchments from inappropriate development and the protection of water quality is paramount to the health of the surrounding environment, habitat, vegetation and all urban and rural communities. And the shallow soils, combined to the effect that a conventional septic tank system cannot be installed on the land in compliance with the standards set out in the Septic Tank Code of Practice.

8 The proximity of the drainage line, the shallow soils and slope combine to make it impossible for a conventional septic tank system to satisfy the performance measures of the code of practice[1] on the subject land.

Mr Hollioake for the Applicants recommended an alternative system based on an aerated waste water treatment plant and a pressure distributed shallow sub surface irrigation combined with a management program mandated through a section 173 agreement as a system which would successfully manage the site deficiencies. Mr Hollioake in his written statement, and while giving his evidence in chief proposed a number of additional measures to further reduce the risks associated with the establishment of a septic tank system on the land i.e.:

•

The use of a mound type system for the effluent disposal field;

•

The establishment of a bund around the waste water treatment plant, to retain waste water in the event of a system failure;

•

The use of an oversized waste water treatment plant;

•

The use of an automatic back washing filter on the delivery line to restrict scum forming within the irrigation lines;

•

The use of a separate electrical circuit fitted with automatic reload relays for the waste water treatment plant;

•

The use of ultraviolet disinfection.

9 I accept that Mr Hollioake's recommended system, with some or all of his recommended additional safeguards, would perform satisfactorily to ensure that waste water was retained on site, subject to an appropriate ongoing management regime. However, this does not resolve the question of whether or not the dwelling proposed is appropriate having regard to the zoning of the land, or whether or not the number of septic tank systems within that catchment should be allowed to increase from a strategic perspective.

10 There are a number of factors in this case which in my view would in the ordinary course lead to a conclusion that a permit should not be granted for the development of a dwelling, and its associated septic tank system, on the subject land, i.e:

•

The subject land is a small lot within a rural zone;

•

The proposed dwelling would not support the use of the land in accordance with the objectives of the zone;

•

The subject land is within a water supply catchment and the density of dwellings, at least in the area proximate to the subject land, considerably exceeds that specified in the interim guidelines[2];

•

The land capability of the site for effluent disposal is limited and elaborate waste water treatment system is proposed to achieve a satisfactory level of performance.

11 There are many decisions of the Tribunal which have refused permission for dwellings in circumstances such as this. Decisions which have included the protection of water supply catchments as a primary consideration, include a number of decisions on my own within the catchment of the Tarago Reservoir[3].

12 However, I am of the opinion that the fact that the land is a restructure lot, within the Pine Acres Estate and is affected by a Restructure Overlay under the provisions of the Macedon Ranges Planning Scheme, creates a difference in circumstance which may warrant a different approach to the assessment of the application. The difference relates to the reasonable expectations of the applicants. It seems to me that the owner of a small lot within a rural zone, in an area devoted to broad acre farming, could not reasonably expect to obtain a permit for a dwelling, as a matter of course, having regard to the planning scheme provisions, particularly if the land was within a water supply catchment[4]. On the other hand a person with a similar lot within a township zone could reasonably expect to be granted a[5] permit for a dwelling. How then do we treat the subject land, it is within a rural zone, but it is also within a long established, and substantially developed, rural residential subdivision and on a lot which has been restructured in accordance with the provisions of the Restructure Overlay affecting the land.

13 In the Gleeson[6] case I dealt with a proposal for the development of a house on a lot of approximately 1400 square metres within the Lyonville Township near Trentham. The land was within a Township Zone, and the issue of whether or not a satisfactory septic tank system could be accommodated on the land was a matter of contention. Having concluded that a septic tank system capable of adequate performance could be developed, I considered the longer term strategic impacts:

Gleeson v Hepburn SC [2004] VCAT 2012

17 Dr Graesser remained concern about the long term strategic impact of cumulative development within the Lyonville township. In particular, the south western corner of the township zone there are two larger undeveloped parcels of land which the Parish map seems to indicate are divided into some 22 township size lots.

18 I'm aware of some scientific work, in the Benalla area, which went someway in supporting the contention that the clustering of septic tank systems can lead to contamination of ground water. Unsewered townships within potable water catchments are clearly a matter of concern and a strategy is required for the management of wastewater in such towns.

19 However, if an individual owns or purchases a lot within a township zone, and can satisfactory demonstrate that they can retain and treat waste water within the curtilage of the lot in accordance with the requirements of the Code of Practice, then I do not think it appropriate to refuse permission on the basis of this more general concern. The decision to include the land within a township zone brings with it the implication that the land can be used for an township purpose and in particular for a dwelling

14 The issue of reasonable expectations, and the longer term impacts of cumulative development are more complex in this case. The subject land is not within a Township Zone, rather it is within a Rural Zone. However, notwithstanding the zoning, I believe that some meaning has to be given to the fact that the land is affected by a restructure overlay and the purpose to be achieved by the restructure plan which forms part of the overlay.

15 The Pine Acres Estate was clearly a residential subdivision. The restructure plan produces a lower density outcome, but is nevertheless a plan for residential estate. I think it is reasonable to assume that the restructure plan was an attempt to reconcile the historic subdivision of the land, with then more current perceptions of orderly planning and land capability. It may be the case that if we were restructuring the Pine Acres Estate in 2005, the result would be an even lower density outcome having regard to our greater concern in respect of the density of development within water supply catchments. The fact of the matter is that this subdivision was restructured in the 1970's and that this planning process is reflected in the current planning scheme provisions.

16 The subject land originally comprised of lots 21 to 24 of the Pine Acres Estate. These lots were consolidated, in accordance with the structure plan, in October 2003. Notwithstanding the zoning of the land, I think that in this context the Park's could reasonably expect to be able to develop the land for the purpose of a dwelling.

17 This type of case raises very complex issues in relation to the balance which should be struck between the public interest, and that of individual land owners. I consider that an important factor in striking this balance, is a consideration of what it is the planning scheme can be said to imply about reasonable use of the land. In this case I think that the planning scheme implies that the land is to be used for a residential purpose, and this is a factor which favours the grant of a permit. I think that this fact distinguishes the circumstances of this case from that in the Leonard case[7].

18 Because we are concerned about a cumulative impact, another important consideration is that of precedent, and I accept Ms MacIndoe's submissions in this regard. It is with this purpose that I sought additional information in relation to the extent to which the Pine Acres Estate, affected by the restructure overlay, had been developed. If it was the case that the estate was largely undeveloped, then a very difficult question would have arisen. On one hand the restructure overlay would be creating an expectation that the estate would be developed for a low density residential purpose, while on the other hand the outcome would be the creation of a large number of new septic tank systems at an unacceptable density. However, I am satisfied that this is not the precedent which is being created here, the estate is largely developed, only a small number of restructure lots are available for development, some of which are not yet restructured.

19 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued.

20 In deciding the conditions to be included on the permit I have had regard to the "draft" conditions provided to the Tribunal by the responsible authority and the water authorities and the submissions and evidence of the parties in addition to the matters which arise from my reasons. In relation to the draft conditions I have decided:

•

To replace the numerous septic tank conditions with more generalised conditions requiring a system to be designed and operated to the satisfaction of both the Responsible Authority and the water authorities. The management plan in particular should form part of the conditions of the septic tank permit issued under the Part IXB of the Environment Protection Act 1970, and;

•

To replace the vegetation related conditions with a more general condition requiring a vegetation management plan.

1 The land is located within the proclaimed catchment, only a reasonably short distance upstream of the Rosslyne Reservoir which supplies drinking water to Sunbury, Gisborne, Riddells Creek and Macedon the Mount Macedon townships.

2 The proposed application is on an area smaller than the 40 hectare minimum size recommended under the "Ministerial Interim Guidelines for Planning Permit Applications in Open, Potable Water Supply Catchment Areas, August 2000".

3 The proposal is unable to comply with the minimum standards set out under the Septic Tank Code of Practice.

4 The proposal creates an unacceptable risk to water quality.

5 The proposal fails to meet the requirement of Council's planning provisions:

(a)

Section 15.01-2 "Responsible authorities should ensure that works at or near waterways provide for the protection and enhancement of the environmental qualities of waterways and their stream uses" and "Planning and responsible authorities should ensure land use activities potential discharging contaminated wastes to waterways are sited and managed to minimise such discharges and to protect the quality of surface water and ground water resources, rivers, streams, wetlands, estuaries and marine environment".

(b)

The proposal is consistent with Section 21 Municipal Statement "Extensive areas are within proclaimed catchments and land use determination areas. The management of land use and development to ensure water quality in these storages is critical consideration for planning decisions. 21.07-2 goes on to state Extensive areas of the Shire falls within proclaimed local and regional water catchments. Use and management of land within catchments are critical for the protection of water quality".

(c)

The proposal is inconsistent with Section 22.03 where the section identifies issues in relation to water quality and disposal of effluent via septic systems in urban and rural areas.

[1] Septic Tanks Code Of Practice - March 2003

[2] Interim Guideline for Planning Permit Applications in Open Potable Water Supply Catchments, August 2000.

[3] Melbourne Water v Baw Baw SC [1998] VCAT 535 (and final decision unreported)

Cabbabe S v Baw Baw SC [2001] VCAT 747

[4] A case referred to by Mc Macindoe supports this contention, Leonard v Moorabool CC [2004] VCAT 1855.

[5] Gleeson v Hepburn SC [2004] VCAT 2012

[6] Gleeson v Hepburn SC [2004] VCAT 2012

[7] Leonard v Moorabool CC [2004] VCAT 1855 para 39