The decision of the responsible authority is varied. In accordance with section 85(1)(e) of the Planning and Environment Act 1987 the Tribunal directs that permit 2006-038 must contain the conditions set out in the permit 2006-038 issued by the responsible authority with the following modifications:-

1 Replace the words Use of an Existing Building as a Dwelling appearing after the words The Permit Allows with the following words:

The redevelopment of an existing building for the purpose of a dwelling.

2 The deletion of parts (a) and (b) of condition 4.3;

3 The addition of the following condition:

The dwelling must only be occupied by an agricultural worker to the satisfaction of the responsible authority and Central Highland Water Authority. If the dwelling is occupied by more than one person then at least one of the occupants must be an agricultural worker.

The responsible authority is directed to issue a modified permit in accordance with this order.

1 This is an application to review conditions placed on a permit issued by the responsible authority[1] for use of an existing building as a dwelling at Barkstead Road, Mollongghip. The conditions in dispute are:

1. Unless specifically required otherwise by any other condition of this permit and except with the prior written consent of the Responsible Authority to any variation, the dwelling must be sited and constructed in accordance with the endorsed plans.

4.3 Prior to a building permit being issued, or the building being occupied, the owner shall enter into an agreement pursuant to Section 173 of the Planning and Environment Act with Central Highlands Water and the Shire of Moorabool that:-

a) The building shall not be extended without written consent of Central Highlands Water and Moorabool Shire Council. Any application for an extension shall only be considered where the need for the extension is consistent with use of t he structure for an agricultural worker.

b) The building shall not be used for holiday, tourist, recreation or similar accommodation.

c) The owner shall have the wastewater treatment and effluent disposal system for the dwelling inspected annually by a qualified environmental health officer ("the EHO") and shall provide annually to both the Shire and the Authority a written report from the EHO on the condition of the wastewater treatment and effluent disposal system.

d) The owner shall have the wastewater treatment facility desludged at least once every 3 years and evidence of this desludging shall be provided in the EHO report referred to ion Clause 4.3a) herein.

e) The owner shall carry out any works considered necessary by the EHO to ensure the satisfactory operation of the wastewater treatment facility and effluent disposal system.

f) The owner shall maintain all drainage lines at all times to divert surface water and subsurface water clear of the effluent disposal field.

g) The owner and the Shire agree to do all things necessary to register a memorandum of this Agreement on the title of the land pursuant to Section 181 of the Planning and Environment Act 1987.

h) This Agreement shall bind the owner and all future successor owners of the property.

i) The owner shall meet all costs of preparing and recording this agreement.

5. This permit will expire if the development is not completed within two years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires, or within three months afterwards.

2 The applicant contests these conditions on the following grounds:

Condition 1 should be deleted as the dwelling referred to therein is already sited and constructed. Further, the Permit is for the use of an existing building as a dwelling, not the development of a dwelling.

Condition 4.3 should be deleted for the following reasons:

A A Building Permit does not need to be issued as the dwelling is an existing building.

B An Agreement pursuant to Section 173 of the Planning and Environment Act is unnecessary as:

i Paragraphs (a) and (b) thereof duplicate matters already provided for in the Planning Scheme;

•

matters that do not need to run with the land as covenants; and/or

•

matters that can be adequately monitored by the Responsible Authority and/or Central Highlands Water if either or both wish to do so; or

•

in the alternative, mattes that can be adequately met through the provision of conditions within the Planning Permit[2].

Condition 5 should be deleted as the Permit is for the use of an existing building as a dwelling, not the development of a dwelling.

3 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

4 The land is situated in a highly productive agricultural area north west of the Moorabool Reservoir. West, north and east of the land are similar agricultural properties. Abutting the land o the south is the West Moorabool River set in a broad reserve associated with the Moorabool Reservoir.

5 The land is a 4.95 hectare allotment part of a larger farm holding which incorporates a number of agricultural allotments further to the south. The land is generally flat, clear of native vegetation and cultivated. .

6 The permit application relates to an existing small cottage located in the northwest corner of the land and accessible from Barkstead Road. The cottage site is slightly elevated and sheltered by a few large cypress trees

7 The cottage was extensively renovated before this application for planning permit[3]. There are no reliable records to indicate the state of the building prior to renovation, although the original building was clearly very old. I was advised during the hearing that there was an existing septic tank system associated with the building. The cottage and its verandah have a total area slightly less than 50 square metres[4].

8 The permit application identified the proposal as being to "reinstate the existing use rights of the building as a dwelling". While it was argued on behalf of the applicant that the application was a use application, it became clear during the hearing that the plans accompanying the application identified new development. The verandah shown on the plans is not the reinstatement or refurbishment of an existing verandah.[5]

9 It was argued that the extensive refurbishment of the cottage building itself amounted to a development, going beyond what could be regarded as routine maintenance. Given the concession made in relation to the verandah it is not necessary to finally determine this issue. Nevertheless it is my opinion the maintenance of timber structures often involves extensive rebuilding.

10 As a consequence of the concession in relation to development, the application in respect of condition 1 was withdrawn, and in my view similar considerations apply in respect of condition 5. The permit is a retrospective permit, at least in respect of development, and therefore the conditions read somewhat oddly in this context. The fault lies not so much with the conditions, but rather with the need for retrospective permission.

11 In the circumstances of this case, the section 173 agreement is a pre-condition to the lawful occupation of the building as a dwelling. Consequentially, it is reasonable to delete reference to the issue of a building permit.

12 The permit application proceeded on the basis that the refurbished building was to be used as a dwelling for an agricultural worker. Therefore, I think it is reasonable that this limitation on the way the building is to be used is reflected in the planning permit conditions. On the other hand, the issue of whether or not the dwelling should or should not be used on a less restrictive basis for holiday, tourist, recreation or similar accommodation, was not considered.

13 In such a context, and as a matter of general principle, I do not think the resolution of such issue should be taken outside the normal planning permit processes and the exercise of discretions embodied within the planning scheme. The Water Authority may with good reason oppose the less restrictive use of the dwelling. The Applicant should be able to test the merits of such a decision by application to this Tribunal should some future application for a less restrictive use of the dwelling be refused.

14 Similarly, in relation to the issue of development, it is my opinion that new development should be controlled by the conventional planning scheme processes, and the Applicant should not be required to enter into an agreement to constrain his right to seek a review of future decision making in this regard.

15 The Central Highlands Water Authority has for many years been a leader in the pursuit of measures to manage the impact of septic tank systems within potable water supply catchments. The authority has sought to limit the number of septic tank systems within catchments, it has sought to influence the standard of the systems installed, and it has pursued measures to ensure the ongoing maintenance of installed septic tank systems.

16 As a consequence of this the Water Authority has been an active participant in the planning permit system and many permits have been issued with conditions requiring section 173 agreements in relation to the ongoing maintenance of septic tank systems.

17 I agree with Mr Belmar's submission that the proliferation of permit conditions requiring section 173 agreements has become a matter of concern to the extent that the State Government reviewed this issue in the context of its Better Decisions Faster processes. I also accept that the proposed requirements for ongoing maintenance of the septic tank system could be embodied in conventional permit conditions without the need for the section 173 agreement.

18 It was submitted on behalf of the Water Authority that the proposed conditions, and the agreements which flow from them, constitute an established system of management within this Water Authority area. There are more than 300 such agreements in existence at present, and on an annual basis the Authority writes to the affected owners to remind them of their obligations under the agreement. It was argued that the fact that the agreement was registered on title, was an important mechanism to alert new owners to their obligation to maintain their septic tank systems, and that this together with the annual letter from the Authority, was an important educative process.

19 While I agree that it is desirable that section 173 agreements should be avoided when permit conditions on their own would suffice, I have come to the conclusion that it is reasonable for there to be an exception to this general rule in the case of these septic tank maintenance conditions proposed by Central Highlands Water Authority.

20 The Authority has established a complex process for the management of septic tank systems within its area. The established process is of considerable importance in the maintenance of water quality within the area. For these reasons I am reluctant to arbitrarily change the way in which the ongoing maintenance of septic tank systems is managed in this area. I note also that the Authority will undertake the preparation of these agreements at its cost.

21 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be varied and the permit modified.

[1] In relation to condition 4.3, a condition placed on the permit at the request of Central Highlands Regional Water Authority a referral authority.

[2] Mr Belmar's submission made it clear that this ground was intended to include reference to

part (c) of condition 4.3.

[3] The permit application was made after an inspection by the water authority identifying the refurbishment of the building.

[4] The building dimensions are; 3.25 x 7.96 metres for the main building comprising one general purpose room and small bathroom and 3.00 x 7.96 metres for the verandah.

[5] To the extent that it is necessary I amend both the permit application and the application for review to reflect this concession in relation to the necessary scope of the permission sought.