Reachy Pty Ltd v Great Geelong CC [2011] VCAT 1202

1. Leave is granted for MC Herd Pty Ltd to withdraw from the proceeding and MC Herd Pty Ltd is withdrawn accordingly.
2. Pursuant to s.60 of the Victorian Civil and Administrative Tribunal Act 1998 the Environment Protection Authority is joined as a party to this proceeding.
3. Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application 605/2010 is amended by the substitution of plan titled Subdivision Layout Plan, SLP02, Version 9 dated 30.09.10 prepared by Breese Pitt Dixon Pty Ltd and circulated on 9 March 2011.
4. The decision of the Responsible Authority is set aside.
5. In planning permit application 605/2010 a permit is granted and directed to be issued for the land at 240 Bacchus Marsh Road, Corio in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Subdivision of the land for 82 residential lots and a balance lot and associated works.
6. Costs are reserved.

Mr Adrian Finanzio, of counsel, instructed by Minter Ellison. He called the following witnesses:

• Dr Damien Eisen, an infectious diseases consulting physician.
• Dr Terry Bellair, an air quality consultant from Environmental Science Associates .
• Ms Amanda Ring, a town planner from SJB Planning Pty Ltd.

An acoustic assessment report was also filed with the Tribunal, prepared by Mr Robert Burton of Burton Acoustic Group. Mr Burton was not called to give evidence or be questioned.

Ms Romy Davidon, solicitor of Best Hooper appeared on the morning of 7 April 2011 to give notice of MC Herd's withdrawal from the proceeding.

Mr David Deller, of counsel, instructed by the Environment Protection Authority solicitor's office. He called the following witness:

• Mr Quentin Cook, an officer of the Environment Protection Authority.

Mr Monahan, a solicitor from Russell Kennedy appeared on the afternoon of 3 May 2011 to confirm agreement between Reachy Pty Ltd and Barwon Water about permit conditions.

To subdivide the land into 82 lots for residential purposes with a balance lot remaining.

It is proposed to subdivide the south-eastern portion of the land. Entry to the subdivision will be from Bacchus Marsh Road. The 82 lots will range in size from 330m2 to 630m2. The majority of lots are around 400m2 to 500m2.

A drainage easement is to be provided along the southern boundary of the subdivision. Internal roads will provide access to any future subdivision of the land.

Section 79 of the Planning and Environment Act 1987 for a review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Zone and Overlays applying under the Greater Geelong Planning Scheme

Design and Development Overlay (Clause 43.02) and Schedule 14 - Dwellings over 7.5 metres (DDO14).

Planning permissions required under the Greater Geelong Planning Scheme

Subdivision of land in a residential 1 zone (Clause 32.01-2).

Subdivision of land subject to a Design and Development overlay that is not exempted by a schedule (Clause 43.02-3).

Create access to a Road Zone Category 1 and to subdivide land adjacent to a Road Zone Category 1 (Clause 52.29).

The land is located approximate to the north east corner of Bacchus Marsh Road and Plantation Road, Corio. The land lies behind an existing row of developed residential properties fronting Plantation Road. It is vacant flat land with unimproved pasture grasses having an area of 12.36ha. It is an irregular shaped allotment described on title as Lot S2 PS 309083X.

The land has a frontage on its western boundary to Bacchus Marsh Road of 330 metres.

A sewerage easement runs diagonally across the site towards the corner of Bacchus Marsh Road and Plantation Road and a drainage reserve lies along its southern boundary.

The land is located opposite and to the south- east from MC Herd's Abattoir processing plant, to the west of the former Finders Peak High School and existing public open space. To the north is other undeveloped residentially zoned land.

1. Reachy Pty Ltd is the owner of 12.36 hectares of land located in Corio. Reachy seeks to develop the south-eastern portion of this land into 82 residential lots. The remaining area would be retained as a balance lot for future development. The proposed lot sizes vary from 305m2 to 630m2 in area.
2. The MC Herd Abattoir, a large abattoir facility is located to the north-west of the proposed residential subdivision. Greater Geelong City Council and the Environment Protection Authority do not support this development because they consider that some, but not all of the proposed lots are too close to the abattoir. Concerns are held that these lots will be affected by odours emanating from the abattoir as well as possible risks from airborne disease.
3. Council considers that if the amenity of new residents is affected, there will be pressure on the abattoir to close down. It is asserted that the abattoir is of significant regional economic importance and its role should be protected from such pressure.
4. The Environment Protection Authority relies on the recommended buffer distance between sensitive land uses and an abattoir as set out in the EPA Publication AQ 2/86 Recommended Buffer Distances for Industrial Residual Air Emissions[1] (the AQ 2/86 Guideline) to support their position about this proposal. The AQ 2/86 Guideline is referenced under the State Planning Policy Framework of the Greater Geelong Planning Scheme, in Clause 13.04-2 - Air Quality. We have considered the efficacy and application of this guideline in determination of this proceeding.
5. For the reasons we set out, we find that the location of the proposed residential lots achieves a satisfactory separation from the abattoir. Accordingly, we have directed the grant of the planning permit.

1. All parties agree that, subject to appropriate conditions, this proposed subdivision meets the design requirements of the Greater Geelong planning scheme.[2] The issue in this application is whether the area of land to be subdivided and developed will have a suitable separation from the abattoir to ensure an acceptable level of protection for amenity and health of the future residents. The Council has however raised issues about balancing the ongoing benefits of the abattoir against further residential development in Corio. It is argued that increasing levels of residential development will generate a land use conflict that will eventually pressure the abattoir in to closing, adversely impacting on Geelong's economy. The Council argues that a policy balance is required in favour of the abattoir.
2. Prior to considering the questions about adequate separation from the abattoir, we consider it important to address the policy issues raised by the Council.
3. Mr Tobin submits that there are two state policy outcomes relevant to this proposal:
   • Support for the provision of housing in appropriate areas that are well serviced, have good access to public transport and other infrastructure such as community services and resources;[3] and
   • Protection of economic development and existing industrial uses from encroachment from land uses that may cause conflicts.[4]
4. There is no argument that the proposed subdivision, which will utilise land that is zoned for residential purposes, is in line with policy objectives for the provision of housing. What is in issue is that supporting this policy objectives generates a land use conflict that the second policy seeks to avoid.
5. It is the Council's position that some of the proposed residential development is too close to the abattoir. Consequently, it has the potential to be adversely impacted upon by the abattoir operations through the generation of odour and from airborne transmission of 'Q Fever'. The resolution of this conflict, on the balance of policy outcomes, is said by the Council to fall toward the protection of the ongoing operation of the abattoir.
6. As Mr Finanzio correctly observes, the State Policy seeks to protect 'industrial activity in industrial zones from encroachment of unplanned commercial, residential and other uses'.[5] He therefore argues that given the reference to activity in industrial zones, it is questionable that this policy should be given the weight Council gives it, given the abattoir is not within the protection of an industrial zone.
7. The abattoir is located in an isolated parcel of farming zone land, which is a legacy of its location prior to the translation of the Geelong Planning Scheme into the VPP format. It lies immediately adjacent the residential zoned land to the east and south, while to the west of the abattoir the land is zoned for Public Park and Recreation and Low Density Residential uses. To the north is the Geelong Ring Road, and industrial zoned land (IN1Z and IN2Z) and a Rural Living Zone.
8. Mr Finanzio also points to local policy which adopts the Geelong Ring Road and the edge of urban (residential) development for Geelong.[6] He has provided us with a detailed history of the strategic land use decision making that is said to have shaped the context of the subject land and abattoir that we have set out. He submits that the subject land has long been recognised as an area to be used for residential purposes. Such recognition is evident from the planning associated with the Geelong Ring Road and that the subject land has long been considered a future part of Corio's urban area.
9. Mr Finanzio contrasts this strategic planning history with that of the abattoir site; highlighting that the site has remained as a farming zone while other land to the north of the Geelong Ring Road has been rezoned for industrial use. He submits that while all this other strategic planning has been put in place no attempt has been made to provide stronger strategic planning support for the abattoir at its present location through the land use planning policy framework or the application of appropriate zonings.
10. It is suggested on behalf of Reachy that this context lends strong policy support for the residential use to prevail and that there will come a time when the abattoir will have outlived its location and will have to close or relocate.
11. Mr Finanzio also refers to the recently abandoned Planning Scheme Amendment C166. This amendment sought to rezone the subject land to a Business 3 Zone for use as a high amenity business/commercial park, arguably to provide a more compatible use with the abattoir. Its abandonment at the direction of the Planning Minister's Department is said by Mr Finanzio to further support the strategic planning decision making for this part of Corio for residential development to prevail.
12. We observe that it is clear that the subject land is earmarked for residential development under the planning scheme. This is self evident from its zoning for residential purposes and the absence of overlays that would constrain its development for residential purposes. We also agree that development of the subject land for residential purposes is supported by the following policy outcomes:
    • Clause 15.01-3 - Neighbourhood and subdivision design through subdivision of land to create liveable neighbourhoods and sustainable communities.
    • Clause 16 - Housing through providing housing opportunities that are diverse, makes efficient provision and use of infrastructure, is located close to sources of employment, public transport and community centres of activity (Corio Village sub-regional centre).
    • Clause 21.06 - Settlement and housing through providing housing diversity and growth within the confines delineated by the Geelong Ring Road.
13. However, we also agree that just because the abattoir is not mentioned specifically in the planning policy framework, its strategic importance to the local and regional economy should be downplayed. There are a number of substantial industries in Geelong, none of whom are specifically mentioned within the local planning policy framework. What is present in that policy framework is broad policy to encourage and sustain economic development in Geelong[7] to provide opportunities for those who do or would seek to live in Geelong.
14. At a potential employment level of 400 people, we have little doubt that the Herd abattoir is one of several contributors to the local economy of Geelong and assists in achieving economic policy outcomes. It is also our view that within the wider planning context, housing and employment are to go hand in hand. There is strong state policy drivers to strengthen local employment opportunities where people live, for a range of economic and environmental reasons.
15. We are also mindful of the role the abattoir has to play in supporting the regional rural economy.
16. Nevertheless, within this broad policy context, we must accept that no active steps have been taken by the planning authority to ensure the protection of the abattoir though the use of planning tools such as an appropriate zoning of the abattoir land and surrounding buffer areas.
17. We do not comment on the process that has lead to this outcome; it is not this Tribunal's role to do so. What we do note however that this process has lead to a situation that is unsatisfactory and has failed to achieve the balance between conflicting land uses, what ever their setting, that is sought under planning policy. While, for reasons we will come to, the extent of proposed residential development can be accommodated on the Reachy land, we are cogniscente of the fact that at some point, the future development of this residential land will bring this issue to a head. An orderly strategic planning process that can achieve a balanced resolution of this potential conflict would seem to us to be appropriate.
18. In this present case however, we agree with the conclusion of Ms Ring that at this point in the development of land around the abattoir an appropriate level of separation between the abattoir and the residential subdivision can be supported to manage the potential land use conflicts. This then is the central issue to our decision, i.e. what constitutes an appropriate level of separation.

BUFFER DISTANCES BETWEEN INDUSTRY AND SENSITIVE USES

1. Clause 13.04-2 of the planning scheme requires planning and responsible authorities to achieve 'wherever possible' of 'suitable separation between land uses that reduce amenity and sensitive land uses'. Policy guidelines refer to the State Environmental Protection Policy Air Quality Management (the SEPP (AQM)) and for assessing separation distances, the AQ 2/86 Guideline.
2. The objectives of Clause 13.04-2 are reinforced by decision guidelines under Clause 65 that seek to ensure the orderly planning of the area. The amenity of the area and in the situation of subdivisions, the existing use (and future use) of nearby land are factors that are to be considered.
3. Clause 52.10 of the planning scheme also relates to the location of potentially offensive industries in proximity to sensitive land uses. The purpose of this clause is to:

...define those types of industries and warehouses which if not appropriately designed and located may cause offence or unacceptable risk to the neighbourhood.

While Ms Ring gave evidence that Clause 52.10 may prove useful in this matter we do not find this to be so for the following reasons.

1. Clause 52.10 as a general rule comes into play when triggered by the conditional requirements of a use under the table of uses in particular zones. Ms Ring's evidence recognises this role, but nevertheless suggests the clause provides some guidance in the application of separation distances. It is true that Clause 52.10 applies distances which reflect the separation distances from guidelines that were there the predecessor to AQ 2/86. However the manner of their application is different to those contained in AQ 2/86. In Clause 52.10 the distances are applied as threshold distances. A threshold distance is defined as:

...the minimum distance from any part of the land of the proposed use or buildings and works to land (not a road) in a residential zone, Business 5 Zone, Capital City Zone or Docklands Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre.

1. The threshold distance of 500m for an abattoir contained in Clause 52.10 is the distance that would be applied when for example an application was received to construct a new abattoir in an industrial 1 zone. Under the table of uses for that zone,[8] if a 500m separation distance is provided from land zoned for (but not necessarily used for) sensitive uses the land use would be a section 1, as of right use (subject to other requirements being met). If it failed to meet this distance requirement, the use would be a section 2, permit required use.
2. When operated in this manner the threshold distance acts as a test for whether closer scrutiny of a land use application is required. It does not however set out what those tests may be or how any land use conflict may be resolved if the separation distance between the two boundaries of each land use are less than the threshold distance .
3. What this proceeding is about is a testing of what is an acceptable separation distance between the abattoir and the new residential development area. Clause 52.10 offers little, in our view, to resolving this test.
4. The submissions and evidence of the EPA focus on the achievement of a sufficient separation distance to protect the amenity of the residential development. Its case relies heavily on the application of the AQ 2/86 guideline, a matter that we now turn to.

The Purpose and application of EPA Guideline AQ 2/86

1. Within the AQ 2/86 guidelines there is no concise statement about its purpose or clear directions about its operation under the various planning processes. It is submitted that these are failings that cause some confusion about the use of the guidelines.
2. It is clear enough from reading the introductory commentary in AQ 2/86 that the primary purpose of these guidelines is to set out distances considered appropriate to separate industry from sensitive land uses reduce the risk of adverse impacts to air quality. Noise, vibration and other hazards have not been considered in the formulation of the separation distances.
3. The separation distances are termed 'buffer distances'. The role of the buffer distance is not to accommodate the dispersal of routine air emissions from industry. That is the purpose of 'in-house' pollution controls as required under the Environment Protection Act 1970 and the EP regulations. Within the AQ 2/86 guideline it is acknowledge however, that even with good pollution control and practice, unintended or accidental emissions may still occur. These types of emissions are termed Industrial Residual Air Emissions (IRAEs). It is the purpose of the buffer distances to provide for the dispersion of IRAE's 'without adverse impacts on sensitive land uses'. The buffer distances are not intended to be a replacement for in house or routine source controls.
4. While we agree that the purpose is not concisely stated within the guideline, the purpose is quite specific. A short introductory statement of this purpose would address this failing, as would commentary to reiterate that the purpose of the separation distances is to address and focus on upset emissions or IRAE's.
5. The second difficulty that we have observed with the AQ 2/86 guideline is in how the separation distances are to be applied under a range of planning scenarios.
6. AQ 2/86 sets out three considerations under the heading of 'Application of this document'. These are:
   • Land use;
   • Receptor-emitter considerations; and
   • Other planning considerations.
7. When read as a whole it is our view that it is intended that the guideline has been framed to be most applicable (and workable) at the strategic planning level. This is so the potential for conflicting land uses can be addressed through the orderly allocation of appropriate land uses to buffer the source of possible IRAE's from more sensitive land uses. When applied in such a way there is no 'reverse application' that has been referred to by the parties. The decision making machinery of the guidelines as set out under the various headings in our view works whether a planning scheme (zoning) amendment is for new sensitive use or new emitter/industrial land use.
8. Where the decision making machinery of this guideline begins to strain is when they are applied in situations like this application, that is where the strategic planning process has failed to account for the need for buffer distances and one is faced with a statutory decision making process to prefer one established land use over another.
9. That said it is apparent that within the statutory planning process, it is a far easier process to apply the mechanics of AQ 2/86 to an application for a new industry near sensitive uses rather than the reverse of a new sensitive use near an established industry. This is the more so for the steps that are outlined when one is considering a departure from the recommended separation distances.[9] We concur with Mr Finanzio that those steps are framed in a manner that requires the involvement of the subject industrial site (or sites). We concur with his submissions that there are practical difficulties and limitations as to how much an applicant can address these steps when the applicant is not the owner or occupier of the industry (or industries) which are the subject of the assessment under these steps.
10. In our view, some refinement of this process is warranted if it is to be applied to the statutory planning process. We reaffirm our opinion however that it is better to avoid such situations such as the one before us in the first instance by applying appropriate separation distances during the strategic planning process.

1. Turning to the application of the AQ 2/86 in this matter, the important question to be answered are:
   • where is the separation distance to be measured from; and
   • will that recommended separation distance of AQ 2/86 be adequate to achieve the purpose of maintaining acceptable amenity for this proposed residential development?
2. To address these questions our focus has turned to the 'Receptor- Emitter Considerations' and Other Planning Considerations' set out in AQ 2/86.
3. Under Receptor-Emitter Considerations, the guideline outlines that the separation distance is to be measured from:
   • the nearest point source of emission to the property boundary of the sensitive use (under consideration); or
   • if the sensitive use is an isolated house in a non-residential zone, the measurement is to be taken from the nearest point source to the house; or
   • if the land is zoned for a sensitive use, regardless of its current use, the distance shall be measured from the nearest point source to the zone boundary.[10]
4. Two points arise from these considerations in this application. Firstly, as we have observed earlier, we are faced with the unsatisfactory situation of the land zoned for a residential use being well within the recommended 500m buffer distance. We accept however that this application is about developing a portion of that land at a distance that is greater than the mere distance between the abattoir and the zone boundary. Both sides argue for a separation distance of at least 500m, as recommended in AQ 2/86. We therefore confine our consideration to where that distance of 500m should be measured from, i.e. what is the nearest point source of possible IREA from the abattoir to the nearest developed lot within the proposed estate.
5. Buried within AQ 2/86 is the fact that the separation distances are based on 'overseas and local experience and on the assumption of good (site) practice'.[11] The guidelines provide for a variation in the recommended distances if site specific circumstances warrant. Criteria are provided to inform the process of considering whether a site variation may be possible. However there are two caveats to these criteria. One is that any site specific variation is to be subject to advice being obtained from the EPA. The other caveat is that certain criteria need to be satisfied 'before detailed consideration is given to [the variation]' and that '[s]atisfaction of the criteria will be a prerequisite....but does not guarantee that a differen[t] distance will be determined'.[12] The guidelines in fact state that even if the criteria are satisfied additional information 'will be required' as will some form of odour dispersion modelling.
6. Much time was spent by the parties in argument over the criteria and whether a variation is required in the circumstances of this application. However we do not consider it necessary to delve into these requirements further. For the reasons we set out below, we are satisfied that there is no reason to depart from the recommended 500m buffer distance contained in AQ 2 /86 and that this separation distance has been achieved by the proposal from the nearest likely source of an IRAE that could impact on the amenity of the residential development.

WHERE SHOULD THE SEPARATION DISTANCE BE MEASURED FROM?

1. In this case we have heard various viewpoints as to what should be the measuring point of odour emission from the abattoir. Initially, the applicant suggested a biofilter located to the north of the Waste Water Treatment Plant (the WWTP). The EPA suggests that the nearest part of the WWTP closest to the residential subdivision should be the measuring point for the 500 metre separation distance. The difference in these respective positions results in 37 of the 82 lots being either in or outside the 500m buffer distance.
2. As we have set out, AQ 2/86 directs that the separation distance should be measured from the point source of any potential source of residual air (i.e. upset) emission.
3. The evidence of Mr Cooke and Dr Bellair is that the abattoir contains a number of different potential sources of odour that will range in frequency, intensity or concentration and distance from the nearest proposed residential lot. Both identify that the main sources of potential odour will be from the sheep and cattle holding yards, the WWTP and the paunch[13] stockpile paddocks.
4. Of these sources, it is the WWTP that is the closest to the subdivision and therefore has been the main subject of evidence from Mr Cooke and Dr Belair. Having agreed that the WWTP is the nearest potential odour source, the two experts disagree however on what part of the WWTP any, or the most significant IRAE, would be likely to emanate from.
5. The proposed plan of subdivision has been based on a 500m buffer from the midpoint of a biofilter located at the northern end of the WWTP. That biofilter is the emission point of treated emissions collected from many sections of the WWTP.
6. On review of the WWTP operations and the evidence of the EPA, Dr Belair considers that this biofilter is in fact not the most likely source of an IRAE release. It is his opinion that of all the sources that can be identified from the WWTP, it is the sludge filter press building that is the most likely odour source that the 500m buffer should be based on.
7. If this point source is adopted the development lots will lie outside the 500m buffer.
8. Mr Cook's evidence is that the nearest point of the WWTP to the residential development should be adopted for the measurement of the separation distance. His evidence is that a number of tanks that lie at the southern most end of the WWTP represent this point.
9. While Mr Cook identified that some of these tanks are in fact trickle filters he was unable to identify the use of the other tanks, as well as some other features of the WWTP.
10. Dr Belair has been able to ascertain that the one or more of the unidentified tanks are part of an emergency overflow and containment system. Thus these tanks would only contain wastewater if there was upset incident within the plant that required temporary storage of waste water. His evidence is that the low organic load of the wastewater in combination with short holding times in these tanks would be unlikely to generate odours of sufficient concentration to cause an adverse amenity impact to the proposed residential development.
11. We also have the benefit of aerial photographs and a site plan from an odour audit of the site undertaken in December 1994. Annotations on this site plan and the aerial photographs match the general layout of the WWTP put to us, including the following features:
    • The large central shed that is enclosed and vents to the biofilter does not contain the DAF[14] treatment plants. These are located to the west of the shed. The shed contains the primary raw effluent pits, tanks and an aerated holding tank.
    • Two of the five outdoor tanks contain trickle filters, while a third tanks has a similar appearance. Two smaller tanks act as overflow tanks with connection to the system.
    • Sludge is piped to and press filtered in a second shed at the north-west side of the WWTP area. It is connected to the odour collection and treatment unit.
12. With this layout in mind, we have considered the question of from where the separation distance should be measured. We first accept that it is the WWTP complex that forms the nearest source of odour that could potentially impact the residential development. We conclude that within this complex the feature with the most likely source of IRAE would be the sludge filter press. We reach this conclusion because:
    • Of all the activities in the WWTP, the sludge filter press is identified by the experts as the source with the greatest odour impact potential. It is also the source that is likely to be the most frequent source because the highest risk of an odour release will be the regular opening of the shed door to replace the sludge collection skip.
    • The 1994 odour audit identifies the sludge filter press to be the greatest source of odours, with a potential maximum odour of 12 OU at a distance of 400m, compared to all other features, including the DAF and trickle filters, as having potential odour levels of 1 OU or less at the same distance.
    • Other sources, such as the wastewater collection pits are subject to odour collection and treatment.
    • Other sources of IRAE's from the WWTP are largely dependant on the abattoir suffering a power failure. The abattoir has an independent emergency power supply which we are informed would maintain the WWTP's operation.
    • The collection of odours from various sources and treatment through the biofilter is agreed by the experts to be best practice.
13. When measured from the sludge filter press building, all the proposed development lots fall outside the 500m buffer distance.
14. Thus in adopting this location it follows that if the 500m distance is acceptable, the development achieves the level of protection sought under AQ 2/86.

1. As noted earlier the separation distances set out in AQ 2/86 are based on a mix of experience and certain assumptions. None of these assumptions are disclosed specifically within the guideline. However it is possible to discern at least some of the factors or assumptions that have influenced the selection of the guideline separation distances. These factors include those that are set out under the criteria for varying the separation distances, viz:
   • The size of the industrial facility;
   • The standard of emission control;
   • Meteorological conditions.
2. We are unable to ascertain from the expert evidence whether the Herd abattoir is of a size that is comparable to larger or smaller than that assumed in setting the 500m separation distance of AQ 2/86. We do not consider this to be a limiting factor however, as most potential sources of odour, such as from the stock yards and paunch lay down areas have separation distances that are well over 500m. The focus of the assessment has been the WWTP. The experts agree that the standard of waste water treatment is best practice in respect to odour control. As best practice there is in fact opportunity to reduce the separation distance, if there are no other detrimental factors.
3. We are satisfied that there are no such negative factors that weigh against adopting the 500m separation distance. There is no evidence of meteorological conditions that would require an increase in the separation distance.
4. We have also given weight to the current situation of housing being present to the south and west of the abattoir. Since the decommissioning of the rendering operations, the EPA advises that odour complaints about the abattoir have dropped significantly. Of recent times there has been only one incident of significant odour release, which has been attributed to problems with the management of paunch. In that incident odour complaints were received from people that were up to one or two kilometres from the abattoir.
5. Such an incident to our minds does not represent a habitual source of IREA and is not the intended purpose for which the 500m separation distance is established. Rather it would be, as we have discussed earlier to establish protection from failures within routine operations. No evidence has been presented to us that the abattoir, as it is currently operating, or the WWTP, are sources of such odour impact to the surrounding residential areas. These areas are from 400m to 500m from the abattoir.
6. Given this history and the above reasons, we accept that the 500m separation distance provides an acceptable level of protection from residual air emissions from the abattoir's WWTP and from its other operations more generally.

1. In remains to address two other issues raised by the Council about this application, that of the risk of the abattoir being a source of Q fever and noise. In respect to the latter, at the commencement of the hearing Council indicated that is would not be pressing the issue of noise. The acoustic evidence of Mr Burton, which had been tabled, was accepted and Mr Burton was not called for cross-examination.
2. The EPA also did not object on grounds related to noise.
3. The Burton acoustic evidence indicates that noise levels from the abattoir will dissipate and not impact on the amenity of the residential development. We find there is no reason to dispute this evidence and accept and adopt the conclusion that in respect to noise the separation distance is sufficient to protect acoustic amenity.

1. It remains for us to address one other issue raised in this proceeding by the Council, and that is about the risk posed by Q fever.
2. Mr Tobin submissions highlight the concern the Council holds about introducing further sensitive uses close to the abattoir because of the increased risk of Q fever infection.
3. We heard from Dr Eison who explained that Q fever is the clinical response to a bacterial infection (Coxiella burnetti) that occurs in animal fluids such as blood, urine and faeces but can be particularly prevalent in placental or birthing fluids. The bacteria causes strong fever like symptoms in humans, and while not fatal to most, may be of serious health concerns to those with pre-existing health conditions.
4. Q fever is highly infectious to humans with the main transmission being by inhalation of aerosol containing the bacteria. Those most prone to infection are abattoir or farm workers who handle animals during birthing or are otherwise exposed to animal fluids, such during slaughter and butchering. Dr Eison's evidence also noted instances of infection occurring in the wider population, where the source was identified as being calving stock coinciding with strong wind conditions. These examples highlight another relevant vector for infection, which is the dispersal of the bacteria on dust emissions, as the bacteria can remain viable while attached to airborne dust particles.
5. In terms of risk, Dr Eison's evidence is that Q fever usually affects abattoir or farm workers because of the close working conditions with livestock. As a consequence of such risk, these people are normally vaccinated against the infection. His review of Department of Health records indicates that no cases of Q fever have been recorded from the population near the Herd Abattoir and that its incidence in the Geelong region is limited to a small number of cases.
6. Having regard to such evidence and the operations of the abattoir it is apparent and agreed by Dr Eisen that if there were any risk to the residential populations around the abattoir, the risk would be from the holding of stock in the yards. Dr Eisen's evidence is however that the risk of infection by the spread of airborne dust particles is exceedingly small as evidenced by the extremely rare instances of occurrence. It is also relevant that much of the yarding pens are under cover, limiting the potential for raised dust. A further factor is the very low risk of pregnant stock actually birthing in the yards.
7. Given the low level of risk, we are persuaded by Dr Eisen's evidence that this development would be at no more risk than the existing population around the abattoir. We find that the level of risk is insufficient to give cause to refusing the proposal a permit.

1. We agree with the submission of Mr Finanzio that our decision has required the balancing of a number of factors and policy outcomes. We here reiterate our view that the present situation of having residential zoned land abutting an abattoir to be unsatisfactory planning outcome. We also recognise that the development of Geelong requires a balancing of policy to achieve economic and housing outcomes. To this end we are prepared to accept that housing development on the proposed portion of land is satisfactory, but only because we are satisfied that the amenity of that land can be maintained to a level suitable for residential use.
2. We are satisfied that this is the case through our examination of the AQ 2/86 guideline. We have given considerable weight to this guideline. We note here however that it is but a guideline and not a code. We wish to emphasise that the separation distances set out in this guideline are just that a guide and not a rule or an absolute. Our examination of ASQ 2/86 gives us reasons to put the view that the use of this guideline should be made with caution having regard to its limitations as well as the mechanisms within it which can be useful to guide the decision making process.
3. Having applied the guideline to this application's context we have found that the separation distance from the abattoir's principle source of potential odour impact is sufficient to achieve a balanced outcome.
4. For those reasons, we direct that the decision of the Responsible Authority should be set aside and a permit be granted.

The permit allows subdivision of the land for 82 residential lots and a balance lot and associated works in accordance with the endorsed plans and permit conditions.

1. Prior to the commencement of the subdivision, three (3) copies of 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 must be generally in accordance with plan Ref SLP02 Rev 8-9 dated 30 September 2010, subject to the following to the satisfaction of the Responsible Authority:
   • (a) Potential future connections with the land to the North that are consistent with an overall development plan for the area and include the conveyance of stormwater flows that may be concentrated or sheet flow.
   • (b) Reconfiguration of lots abutting the eastern boundary of the site as may be required to accommodate condition 19.
   • (c) Further detail of intersection treatments, road cross sections, local area traffic management, DDA compliance and designated pedestrian crossing points, on or off street bicycle facilities and connectivity to surrounding subdivisions and roads.

1. The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) shall not be altered or modified without the written consent of the Responsible Authority. There are no requirements to alter or modify the endorsed plan if a plan is certified under the provisions of the Subdivision Act 1988 that is generally in accordance with the endorsed plans.

1. Prior to works commencing, plans of the pits and pipes for the supply of optical fibre to each lot within the subdivision must be submitted to and approved by the Responsible Authority.
2. Prior to the issuing of a Statement of Compliance for the subdivision pits and pipes for the supply Optical Fibre are to be installed to each lot within the subdivision to the satisfaction of the Responsible Authority.

Approved Development - Construction Management Plan

1. Prior to works commencing, an Environmental (Construction) Management Plan (EMP) shall be submitted and shall address control of site emissions during construction and the defects liability period to the satisfaction of the Responsible Authority. The plans must include measures to be taken to ensure that no polluted water and/or sediment laden runoff is to be discharged directly or indirectly into stormwater drains or watercourses during the construction period. The EMP shall be prepared in accordance with the EPA - Guideline for Environmental Management, Doing it Right on Subdivisions, Publication 960, September 2004.

1. Prior to certification of the Plan of Subdivision drainage easements in favour of the City of Greater Geelong shall be created on the Plan of Subdivision to the satisfaction of the Responsible Authority.

1. Prior to the commencement of works, engineer designed road works and drainage construction plans must be submitted to and approved by the Responsible Authority and must include:
   • (a) Fully sealed pavement with kerb and channel;
   • (b) Concrete footpaths; and
   • (c) Underground stormwater drainage,

These works must be constructed in accordance with the approved plans and specifications to the satisfaction of the Responsible Authority prior to the issuing of a Statement of Compliance for the subdivision.

1. Prior to works commencing for each stage of the subdivision, Independent Road Safety Audits must be carried out for the internal and external intersection treatments at the detailed design stage by a suitably qualified auditor in accordance with Austroads "Road Safety Audit" (2002). The findings of the Independent Road Safety Audit must then be formally responded to and implemented by the subdivider with the results submitted to the Responsible Authority for approval.

1. Prior to the issuing of a Statement of Compliance for the subdivision footpath, concrete kerb and channel and the reshaping of the verge (including open drains) between the existing edge of seal and the proposed service road shall be constructed across the street frontage of the subdivision in Bacchus Marsh Road at the full cost of the subdivider.

1. The endorsed plan(s) must provide for the proper conveyance of drainage and stormwater to designated drainage reserve(s) and/or lawful points of discharge, to the satisfaction of the Responsible Authority.

1. Prior to the issuing of a Statement of Compliance for the subdivision an underground stormwater drainage system including detention basin shall be constructed within easements and/or road reserves to cater for all lots, roads, streets and courts created by the subdivision and the surrounding developed and undeveloped area all to the satisfaction of the Responsible Authority.

The stormwater drainage system on the site must be designed such that stormwater runoff exiting the land meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) as follows:

• 80% retention of the typical annual load of suspended solids;
• 45% retention of the typical annual load of total phosphorous;
• 45% retention of the typical annual load of total nitrogen; and
• 70% retention of the typical annual load of gross pollutants.

1. Prior to the issue of a Statement of Compliance, the subdivider shall provide and place relevant street signs to the satisfaction of the Responsible Authority.

1. Prior to the issuing of a Statement of Compliance for the subdivision street lighting is to be provided within and abutting the subdivision to the satisfaction of the Responsible Authority and at the full cost of the subdivider.

1. The subdivider shall construct a reinforced concrete footpath, loam and sow down, landscape, etc., within the subdivision land and abutting the Council Reserve to the satisfaction of the Responsible Authority.

1. No topsoil shall be removed from the land without the consent of the Responsible Authority and any topsoil disturbed as a result of works permitted by this permit shall be stockpiled on the site for later redressing of the land.

1. Prior to the issuing of a Statement of Compliance for the subdivision all disturbed surfaces on the land authorised by this permit except those areas set aside for roadways and footpaths shall be dressed with topsoil and, where appropriate, revegetated and stabilised to the satisfaction of the Responsible Authority to prevent any erosion or siltation either on or adjacent to the land.

1. Prior to the issuing of a Statement of Compliance or such later date as approved by the Responsible Authority, the landowner must pay to the Responsible Authority any drainage levy at the approved ruling rate at the time of payment lawfully and reasonably required by the Responsible Authority.

1. The plan of subdivision submitted for certification must be referred to Telstra in accordance with Section 8 of the Subdivision Act 1988. Telstra will not consent to the issue of a Statement of Compliance until such time as the applicant provides satisfactory evidence of compliance with this condition.

Note: Approval does not cover alterations to existing Telstra Plant or Network. Locations of existing network can be obtained from Dial Before You Dig - Ph: 1100. For coordinated Telstra plant reticulation in this development, please refer to: www.telstrasmartcommunity.com to Register your development and apply for reticulation.

1. Prior to the certification of the plan of subdivision, the layout of the proposed lots must be altered together with any consequential adjustments necessary to adjacent roads and lot boundaries, to set aside land as a reserve to vest in Barwon Region Water Corporation for the purpose of a 6.0m wide reserve which will be required for a public purpose. The reserve shall be located along the eastern boundary of the site, extending from the northern boundary for approximately 140m where it intersects with an existing 5.0m wide easement within the road reserve, all to the satisfaction of Barwon Water.
2. The owner must create easements for 'Pipelines or Ancillary Purposes' and/or reserves in favour of Barwon Region Water Corporation on the plan of subdivision in accordance with Barwon Water's Land Development Manual, without cost to Barwon Water, over existing and proposed water and sewerage infrastructure within the land, to the satisfaction of Barwon Water. If further easements or reserves are required following design of water and sewerage infrastructure these must be added to the plan of subdivision to the satisfaction of Barwon Water prior to seeking Barwon Water's consent to the issue of a statement of compliance for the subdivision.
3. The plan of subdivision must be referred to Barwon Water in accordance with the Subdivision Act 1988 and any subsequent amendments to the plan provided to Barwon Water.

1. The provision and installation of individual water services including meters to all lots in the subdivision must be provided to the satisfaction of Barwon Water in accordance with Barwon Water's requirements and Victorian Plumbing Regulations. Tappings and services are not to be located under existing or proposed driveways to the satisfaction of Barwon Water.
2. The payment of New Customer Contributions for each additional lot created and/or each additional metered connection for water supply within the subdivision must be provided to the satisfaction of Barwon Water.
3. The owner or developer under this permit is required to provide reticulated water mains to front each lot within the development without cost to and to the satisfaction of Barwon Water.

1. The provision of sewerage services to all lots in the subdivision in accordance with Barwon Water's requirements and Victorian Plumbing Regulations, to the satisfaction of Barwon Water. Individual allotment house connection drains are to be provided for and extend into each allotment to the satisfaction of Barwon Water.
2. The payment of New Customer Contributions for sewer for each additional lot created and/or each additional metered connection within the subdivision must be provided to the satisfaction of Barwon Water.
3. The owner or developer under this permit is required to provide reticulated sewer mains to service each lot within the development without cost to and to the satisfaction of Barwon Water. No direct connections from individual properties to the Lara Interceptor Sewer are permitted.
4. The owner or developer under this permit is required to obtain Barwon Water's written approval to vary the ground level or use of the land over its Lara Interceptor Sewer traversing the land; such approval will only be granted provided that:
   • (a) The civil works for the subdivision are designed to provide the minimum cover required in accordance with Barwon Water's design and construction standards including Barwon Water's Supplement to the WSAA Sewerage Code of Australia Melbourne Retail Water Agencies Edition version 1.0, WSA 02-2002-2.3.
   • (b) The existing trench is excavated over the pipeline under proposed road pavements and replaced with compacted Class 2 FCR crushed rock.
   • (c) The owner/developer under this permit replaces all maintenance structure covers on the Lara Interceptor Sewer located within road reserves with heavy duty "Class D" covers without cost to Barwon Water.
   • (d) The owner/developer under this permit modifies the maintenance structure cover levels in accordance with Barwon Waters design and construction standards without cost to Barwon Water including vacuum testing all modified maintenance structures,

1. The owner/developer under this permit is required to pay Barwon Water for the provision of:
   • (a) A CCTV inspection of the section of Lara Interceptor Sewer traversing the land after completion of the subdivision civil works to allow comparison with Barwon Water's recent CCTV survey of this sewer.
   • (b) A post development report of the CCTV inspection which will be assessed against Barwon Water's recent condition report of this sewer to identify any damage to the sewer main caused either directly or indirectly by the subdivision works,

1. The owner/developer under this permit is required to reimburse Barwon Water for any repairs required to the Lara Interceptor Sewer required to make good any damage caused to it either directly or indirectly by the subdivision works identified by the CCTV inspection and post development report, to the satisfaction of Barwon Water.

Note: The developer is to apply to Barwon Water for details relating to costs and conditions required for the provision of water supply and sewerage services to the subdivision. It would be appreciated if all communication between the developer/agent and Barwon Water quote Barwon Water reference number L006219.

1. The subdivision as shown on the endorsed plans must not be altered without the consent of CFA.
2. Access for the subdivision and street hydrants shall comply with the CFA publication "Requirements for Water Supplies and Access for Subdivisions in Residential 1 and 2 and Township Zones".
3. Operable hydrants, above or below ground, must be provided to the satisfaction of CFA.
4. The maximum distance between these hydrants and the rear of all building envelopes (or in the absence of the building envelope, the rear of all lots) must be 90m and hydrants must be no more than 120m apart.
5. Hydrants must be identified as specified in 'Identification of Street Hydrants for Firefighting purposes' available under publications on the Country Fire Authority website (www.cfa.vic.gov.au).
6. Roads must be constructed to a standard so that they are accessible in all weather conditions and capable of accommodating a vehicle of 15 tonnes for the trafficable road width.
7. The average grade must be no more than 1 in 7 (14.4%) (8.1 degrees) with a maximum of no more than 1 in 5 (20%) (11.3 degrees) for no more than 50 metres. Dips must have no more than a 1 in 8 (12%) (7.1 degree) entry and exit angle.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to Powercor Australia Ltd in accordance with Section 8 of that Act.
2. The owner/subdivider shall provide an electricity supply to all lots in the subdivision in accordance with Powercor's requirements and standards, including the extension, augmentation or re-arrangement of any existing electricity supply system, as required by Powercor. (A payment to cover the cost of such work will be required). In the event that a supply is not provided the owner/subdivider shall provide a written undertaking to Powercor Australia Ltd that prospective purchasers will be so informed.
3. Where buildings or other installations exist on the land to be subdivided and are connected to the electricity supply, they shall be bought into compliance with the Service and Installation Rules issued by the Victorian Electricity Supply Industry. The owner/subdivider shall arrange compliance through a Registered Electrical Contractor.
4. The owner/subdivider shall set aside on the plan of subdivision for the use of Powercor Australia Ltd reserves and/or easements satisfactory to Powercor Australia Ltd where any electric substation (other than a pole mounted type) is required to service the subdivision. Alternatively, at the discretion of Powercor Australia Ltd a lease(s) of the site(s) and for easements for associated powerlines, cables and access ways shall be provided. Such a lease shall be for a period of 30 years at a nominal rental with a right to extend the lease for a further 30 years. Powercor Australia Ltd will register such leases on the title by way of a caveat prior to the registration of the plan of subdivision.
5. The owner/subdivider shall provide easements satisfactory to Powercor Australia Ltd, where easements have not been otherwise provided, for all existing Powercor Australia Ltd electric lines on the land and for any new powerlines required to service the lots and adjoining land, save for lines located, or to be located, on public roads set out on the plan. These easements shall show on the plan an easement(s) in favour of Powercor Australia Ltd for 'Powerline Purposes' pursuant to Section 88 of the Electricity Industry Act 2000.
6. The owner/subdivider shall obtain for the use of Powercor Australia Ltd any other easement external to the subdivision required to service the lots.
7. The owner/subdivider shall adjust the position of any existing easement(s) for powerlines to accord with the position of the line(s) as determined by survey.
8. The owner/subdivider shall obtain Powercor Australia Ltd's approval for lot boundaries within any area affected by an easement for a powerline and for the construction of any works in such an area.
9. The owner/subdivider shall provide to Powercor Australia Ltd, a copy of the version of the plan of subdivision submitted for certification, which shows any amendments which have been required.

1. Easements in favour of SPI Networks (Gas) Pty Ltd must be created on the plan of subdivision to the satisfaction of SP AusNet (Gas).
2. The plan of subdivision submitted for certification must be referred to SP AusNet (Gas) in accordance with Section 8 of the Subdivision Act 1988.

1. Vehicular access to the subject land shall be via a subdivisional road connection to Bacchus Marsh Road (road zone category 1). Direct vehicular access from subdivisional lots to Bacchus Marsh Road is not permitted. Direct access shall be restricted by use of a service road or plantation reserve contiguous with the Bacchus Marsh Road reserve to the satisfaction of VicRoads.
2. Prior to the issue of a statement of compliance a Channelised Right Turn Lane (CHR) and an Auxiliary Left Turn Lane (AUL) treatment in accordance with Austroads "Guide to Road Design, Part 4A: Unsignalised and Signalised Intersections" publication shall be provided at the Bacchus Marsh Road and the internal subdivisional road intersection to be located generally central to the site.
3. Detailed design plans for the intersection treatment on Bacchus Marsh Road shall not proceed until a functional layout plan is approved in writing by VicRoads.
4. Subsequent to approval of a functional layout plan, a detailed intersection design shall be prepared by a designer acceptable to VicRoads and shall be in accordance with Austroads and VicRoads standards. The intersection design shall include detailed engineering plans, inclusive of street lighting and regulatory signs and line marking, and shall identify any service relocation, vegetation removal and any road reserve width deficiencies. The intersection design shall be compatible with future conversion at such time as Bacchus Marsh Road is duplicated.
5. Road safety audits must be carried out for the Bacchus Marsh Road intersection works at the detailed design and pre-opening stages by a suitably qualified auditor in accordance with Austroads "Road Safety Audit" (2002). The findings of the audit must be resolved in writing by the applicant to the satisfaction of VicRoads.
6. Access works in accordance with the approved detailed design plans must be carried out to the satisfaction of and at no cost to VicRoads.
7. The discharge of any concentrated drainage or sullage onto the Bacchus Marsh Road reserve shall not be permitted unless approved in writing by VicRoads.
8. The applicant must contact VicRoads Manager Program Delivery (telephone number 5225 2525) at least 14 days prior to the commencement of works within the Bacchus Marsh Road reserve to discuss construction arrangements.
9. The applicant must not commence any works in, on, under or over the Bacchus Marsh Road reserve without having first applied for and received written consent from VicRoads for those works in accordance with section 63 of the Road Management Act 2004.

Note: When issuing its consent, amongst other things VicRoads will include requirements that certification auditing of the works is to be undertaken and that a security deposit by lodged for the works.

1. Prior to commencing work within the Bacchus Marsh Road reserve, the applicant or applicant's contractor must:
   • (a) Ensure that detailed design plans for all works are forwarded to VicRoads' South Western Region Office for approval.
   • (b) Obtain VicRoads' approval to the proposed pavement design.
   • (c) Prepare a specification for the works in accordance with relevant sections of the VicRoads Standard Specification for Roadworks.
   • (d) Ensure that any consultants and/or contractors engaged in the design or construction process are prequalified by VicRoads at Level R1.
   • (e) Provide evidence that the applicant/applicant's contractor has public liability insurance acceptable to VicRoads for the duration of the proposed works.
   • (f) Demonstrate that all works will be administered in accordance with quality assurance principles, including but not limited to Safety, Environmental and Quality.
   • (g) Ensure that work site practices are in accordance with the Road Management Act 2004, Worksite Safety - Traffic Management, Code of Practice.

1. The permit will expire if the plan of subdivision is not certified within 2 years from the date of this permit and if a statement of compliance is not issued within 5 years from the date of certification of that plan.

[1] Environmental Protection Authority Victoria, July 1990.

[2] As set out under Clause 56 of the planning scheme.

[3] Clause 11, in particular 11.05 Regional Development, and Clause 16.01.

[7] Clause 21.07 Economic development and employment.

[9] These are set out at page 4 of AQ 2/86.

[10] We note that there is a difference between Clause 52.10 and AQ 2/86 with respect to measuring land use separation. Under Clause 52.10 a threshold distance is measured from the boundary of the industrial site while under the EPA guideline the measuring point is the actual location or point of the emission source.

[13] Paunch relates to undigested stomach content such as undigested grass and which is stockpiled for composting at a paddock behind or to the west of the processing plant.