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[2007] VCAT 1814
Victorian Civil and Administrative Tribunal
2007-09-24
Original judgment source is linked above.
[1] Because of the delay in processing the permit application, we considered it appropriate to require notice of the application for review to be given to make sure that potentially affected person who may have moved into the area, like Mr Griffin, were given the opportunity to object and be party to the hearing if they wished.
[2] The permit application was referred to Goulburn-Murray Water [GMW], which the council thought was the relevant Water Supply Authority [WSA] at the time. This was a mistake as GMW is not the relevant WSA. GMW did not object to the proposal. After the council made its decision, the council forwarded the proposal to the correct WSA, Western Water [WW]. WW object to the grant of the permit. Mr Scally did not oppose WW being joined as a party and for it to present its case to the tribunal.
[3] The full details of the lots are set out at page 4 of the council's submission.
[4] Figures based on Macedon Ranges Shire Council population projections as set out in Mr Glossop's evidence report based
[5] At the commencement of the hearing, the application was amended by substituting plans circulated by the applicant in March 2007 in accordance with our directions dated 22 February 2007.
[6] Department of Infrastructure August 2000.
[7] Mr Phillips was called as an expert agricultural land use witness by WW.
[10] Dept of Sustainability and Environment VPP Practice Note [March 2007] "Applying the rural zones"
[12] Page 4 of Dr O'Connor's statement of evidence dated February 2007.
[13] National Health and Medical Research Council and Natural Resource Management Ministerial Council, 2004.
[14] Presented in Mr Glossop's evidence.
[15] Page 32 of Dr O'Connor's written expert evidence dated February 2007.
[17] Page 31 of Dr O'Connor's written evidence.
[18] The amended applications indicate the septic tank disposal fields to be located variously from 165m to 550m from the Campaspe River, in excess of 100m from farm dams and from swales / depression lines.
[19] A septic tank system is defined in the EP Act to be a system for the bacterial, biological, chemical or physical treatment of sewage, and includes all tanks, beds, sewers, drains, pipes, fittings, appliances and land used in connection with the system. It is an all encompassing definition and we use it here in preference to the term on-site wastewater treatment plant/system.
[22] Clause 32 of the State environmental protection policy (Waters of Victoria).
[23] Section 32(2) (i) of the State environmental protection policy (Waters of Victoria).
[24] EPA Publication 891 Septic Tank Code of Practice. Environment Protection Authority, March 2003.
[25] Section 1.1 Purpose of the Code, page 1.
[27] Section.3.5 People Operating Onsite Wastewater Systems at page 12.
[32] Section 5.5 Management Program Development.
[33] Potable water supply catchments declared as special water supply catchment areas under Division 2 of Part 4 of the Catchment and Land Protection Act 1994.
[34] A minimum lot size of 40 ha is also to be adopted for subdivision applications.
[35] Refer Guideline 1 at page 2 of the guidelines.
[41] The Interim Guideline is not a reference document in the Macedon Ranges Planning Scheme or other relevant acts or statutes.
[42] We consider the failure to explain how a 1:40 ha density should be determined to be a flaw in these guidelines. While Mr Glossop and others have adopted a 1km radius around the location of a dwelling43, we note that such an approach could easily include a dwelling up to a 1,000m from a waterway. We find that such an approach seems to be at odds with the Code of Practice, which highlights that a buffer distance of 100m is appropriate for potable water supply waterways. To extend the density calculation beyond this buffer seems to capture dwellings that, by import of the Code of Practice, are not considered to be presenting a risk.
[44] Refer to Guideline 1 of the Interim Guidelines.
[45] North Central Regional Catchment Strategy, North Central Catchment & Land Protection Board, 1997. Regional Catchment Strategies for the Port Phillip & Western Port Region, Port Phillip Regional Catchment & Land Protection Board, 1997. Septic Tank Code of Practice, Environment Protection Authority, 1996. Campaspe Water Quality Strategy, Campaspe Water Quality Committee, 1997. Western Water Catchment Policy, Macedon Regional Water Authority, 1994.
[47] Refer to section 7.3) pages23 to 27) of Dr O'Connor's expert statement.
[48] A higher standard for surface irrigated wastewater requires that in addition to the above standard faecal coliform as measured by E Coli must not be greater than 10 org/100ml.
[49] The certification process is set out in EPA Publications 748 undated.
[53] Comprising Deputy President Forgie and Member McLean.
[54] The tiered model of risk management (multiple barriers) is set out in Part I of the Australian Drinking Water Guidelines (National Health and Medical Research Council and the Natural Resource Management Ministerial, 2004).
[55] Refer for example to the Interim Guidelines where it is stated that [r]esidential development and agriculture particularly have the potential to impact adversely on water quality through the discharge of contaminated run-off and wastes, nutrient contributions or sediment to waterways. Three key sources of these pollutants; septic tank systems, agricultural practices and buildings and works are the focus of this interim guideline.
[56] Essential Facts - Our precious drinking water. Melbourne Water, May 2006.
(1) Sound environmental practices and procedures should be adopted as a basis for ecologically sustainable development for the benefit of all human beings and the environment.
(2) This requires the effective integration of economic, social and environmental considerations in decision making processes with the need to improve community well-being and the benefit of future generations.
(3) The measures adopted should be cost-effective and in proportion to the significance of the environmental problems being addressed.
Rozen
Macedon Ranges SC