Victorian Civil and Administrative Tribunal|2001-03-31

Perissa Pty Ltd v Delatite SC and Ors [2001] VCAT 603 (31 March 2001)

Application under s. 80 of the Planning and Environment Act 1987; Delatite Planning Scheme; Rural Zone; Construction of a Dam.

The Application for Review is allowed. The order of this Tribunal is that, pursuant to section 85(1)(b) of the , the Responsible Authority is directed to issue a permit for the construction of a dam on the land at CA14B, Moorngag Road, Moorngag (Title Vol. 8066 Folio 351) in accordance with the endorsed plans and subject to the conditions set out in the permit dated 12 October 2000, with the following variations:

s Condition 3 is deleted and Conditions 4 - 9 are re-numbered as 3 - 8 respectively.

Mr B Saunders, Director of Perissa Pty Ltd, and Mr Nolan, appeared on behalf of the Applicant for Review.

Mr N Garrett appeared on behalf of the Responsible Authority.

Mr McCauley and Mr W Fitch appeared on their own behalf as Respondent Objectors. Mr L Ginnivan appeared on behalf of the Moorngag Recreation Reserve.

A number of plans and other documents were tendered to the Tribunal. All material has been considered by the Tribunal and is retained on file.

1. This is an Application under Section 80 of the Planning and Environment Act 1987 brought by Perissa Pty Ltd for a review of conditions included in permit no. PD/00/00106 issued by the Delatite Shire Council ("the Council") on 3 October 2000 and re-issued on 12 October 2000.

2. An Application for Review was lodged on 31 October 2000 to review Condition 3 and Note (b). They are:

s Condition 3 - Size of Outfall Pipe. Before the use and development starts, a report is to be submitted that details what size outfall pipe is required to provide an environmental flow in the creek. The report must be submitted to both the Responsible Authority and Goulburn Murray Water for approval. The minimum size outfall pipe is 50mm.

s Note (b) - the proposed 1 metre freeboard on the dam should be reviewed and justified when detailed dam plans are prepared.

4. The Tribunal heard submissions from all parties and a number of matters were discussed and clarified during the course of the Hearing.

5. It was confirmed by the Applicant for Review that Condition 4, relating to the period for diversion, was not in contest - this being a particular concern of Respondent Objectors. Mr Saunders stated that the capacity of the dam would now be reduced to 35 ML.

6. The Tribunal records that Mr Garrett's submission on behalf of the Council offered no objection to the deletion of Condition 3. This was on the basis that Goulburn Murray Water had subsequently advised Mr Garrett that it did not consider a report relating to the size of outfall pipe was necessary and that it would accept the 50mm pipe proposed to achieve a 0.3 ML environmental flow. After the Tribunal expressed some concern about the legality of Note (b), Mr Garrett did not object to the Note being re-drafted into Condition 1.

7. At the conclusion of the Hearing, after hearing submission, the Tribunal advised the parties of its decision, as set out in the order, and gave oral reasons for that decision. In summary:

s Condition 3 - all parties accepted Mr Garrett's advice that Goulburn Murray Water did not consider that a report on environmental flows, as referred to in Condition 3, was required. That element of the Condition could therefore be deleted. Condition 3 also refers to the size of the outfall pipe. As the plans show a 50mm outfall pipe, and because Condition 1 requires further design detail to be provided, the Tribunal was satisfied the size of the outfall pipe would be adequately addressed.

s Note (b) - the Tribunal considered that the Note was not the appropriate way to require any design of the freeboard to be reviewed. In any event, it was submitted by Mr Saunders that the 1 metre freeboard was a design standard and that the freeboard was considered to be acceptable by Goulburn Murray Water. The Tribunal stated that Condition 1, requiring design details of the dam and diversion weir to be prepared, would adequately encompass the freeboard. The Tribunal records the comments made by Mr Saunders that the plans will be prepared by engineering experts and submitted to the Council and Goulburn Murray Water for approval.

8. The Tribunal records that a number of other matters were of concern to Respondent Objectors, notably the maintenance of the outfall pipe and ensuring an environmental flow in the event of dry winter conditions. Following some discussion at the Hearing, the Tribunal remarked at the Hearing that these matters would be addressed through the diversion licence that would be necessary for the permit holder to obtain from Goulburn Murray Water.

Environment Act 1987

Perissa Pty Ltd v Delatite SC and Ors [2001] VCAT 603

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Perissa Pty Ltd v Delatite SC and Ors [2001] VCAT 603 (31 March 2001)

Parties

Legislation Cited (1)