Rozen v Macedon Ranges SC

Rozen v Macedon Ranges SC - [2009] VCAT 2746 - VCAT 2009 case summary — Zoe

[26]

This case is about the application of the precautionary principle when considering a proposal to construct dwellings in an open potable water catchment.
Maurice and Esther Rozen applied for a permit in 2003 to develop four dwellings on the site, each on an individual allotment. Macedon Ranges Shire Council sought further particulars to support the application and the Rozens took a long time to provide the requested information. In November 2005, nearly three years after the permit application was lodged, the Council refused the permit application. All through this permit application process, Western Water was unaware of the permit application and it was not until after an application for review by the Rozens was lodged at the Tribunal that it became aware of the permit application. It subsequently objected to the proposal and supported the Council's refusal.
Central to Western Water's opposition to four dwellings was the fact that the dwelling density would exceed one dwelling per 40 hectares, which is the benchmark density within an open potable water supply catchment established by the Interim Guideline for planning permit applications in open, potable water supply catchment areas.
The application for review was heard by the Tribunal[1] in May 2007 (the first Tribunal) and it subsequently set aside the Council's decision and granted a permit for four dwellings[2].
Western Water appealed to the Supreme Court[3]. Justice Osborn found the Tribunal had misstated and misapplied the precautionary principle in circumstances where it was plainly relevant, because both the Guidelines and the planning scheme policy required the Tribunal to consider the question of cumulative risk created by otherwise individually appropriate septic tank systems. The case was remitted to the Tribunal for further hearing in accordance with law and this proceeding constitutes the rehearing directed by the Court.
Following the Supreme Court case in May 2009, the Government affirmed the principle of a dwelling density of 1:40 ha by adopting the Guidelines: planning permit applications in open, potable water supply catchment areas.
The council and Western Water maintain their opposition to four dwellings on the land. However, each concede that two dwellings would be acceptable even though this would be slightly less than the 1:40ha dwelling density.
We have reached the conclusion that only one dwelling should be permitted. In doing so, we have not only looked at water quality protection and the application of the precautionary principle, but to other planning policies and objectives applicable to the land.
We have grouped our discussion of the issues in this case as follows:
- Application of the precautionary principle
- Landscape and visual impact
- Application of planning policy to rural/agricultural and environmental issues

[33]

Justice Osborn found that the Tribunal had taken the position that a risk of irreversible environmental damage was necessary to invoke the precautionary principle[6]. He held that in taking this position, the Tribunal misapprehended and misstated the precautionary principle. He said it was not necessary that a risk "be so severe as to impose some long term liability to future generations". If there is a risk of serious environmental damage it need not be one of irreversible environmental damage in order for the precautionary principle to be invoked[7]. The failure of the Tribunal was in not correctly identifying or addressing the concept of risk of "serious" as distinct from irreversible damage to the environment[8].
It is therefore clear that the precautionary principle is applicable not only in cases where there is a risk of irreversible damage to the environment, but also whenever there is a risk of serious, although not necessarily irreversible, damage to the environment.
The distinction between "serious" as distinct from "irreversible" damage to the environment is highly relevant when assessing impacts on water quality in an open potable water catchment. There is evidence that situations may arise leading to contamination of waters in open water supply catchments that can result in human harm. The contamination may be an isolated event giving rise to serious, but not irreversible environmental damage. In this respect, impact on human health or danger to human life was held to constitute environmental damage when the primary beneficial use of the waters in issue is that of potable water[9].
This finding by Justice Osborn was a direct response to observations by Judge McLauchlin QC in Theo v Caboolture Shire Council[10] which was relied upon by the Rozens, that _"_the [precautionary] principle is concerned with environmental damage, not with danger to human life." This can be seen as an example of the 'judicial gloss' that Justice Osborn had referred to earlier. It was a comment made in the context of the facts of that case. It was not a comment that had application in the current set of circumstances.
In our view, any risk to human health must be regarded as serious. We consider this is implicit in the terms of the Safe Drinking Water Act 2003 and the Australian Drinking Water Guidelines. Therefore, when considering development in open potable water supply catchment areas, risk to human health is highly relevant and, because of its serious nature, must be given priority over other planning objectives. This priority is recognised in the planning policy context of the planning scheme. Water industry legislation and policy provide detailed guidance as to how to protect water resources and avoid serious risk to human health. Essentially, this is a multiple barrier approach. It is in this context that the Guidelines: planning permit applications in open, potable water supply catchment areas must be considered and applied - as one barrier in a multiple barrier approach to protect drinking water quality.

[76]

As outlined earlier, the Supreme Court took the view that: "Such an approach does not adequately address the cumulative risk factor recognised both by the Guidelines and the terms of the planning scheme policies either at all, or within the context of the precautionary principle."[20] Simply accepting the provision of a satisfactory land capability assessment, coupled with the design of a septic system in accordance with the Septic Tank Code of Practice as achieving a satisfactory result, as the Tribunal had done, "does not recognise that both the Guidelines and the planning scheme provisions make clear that the cumulative risk of adverse impact to water quality resulting from successive residential developments, is a discretely relevant consideration when permits are sought for increased densities of septic tank facilities within a portable water supply catchment."[21]
Following the Supreme Court decision in Western Water v Rozen and Anor, the Minister for Planning adopted in May 2009 the Guidelines: planning permit applications in open, potable water supply catchment areas ("the current Guidelines").
The current Guidelines have been adopted by the Minister for Planning for the purposes of section 60(1A)(g) of the Planning and Environment Act 1987. The current Guidelines apply to all open, potable water supply catchments declared to be special water supply catchment areas under Division 2 of Part 4 of the Catchment and Land Protection Act 1994. They apply to the subject land and we find that the circumstances here require the current Guidelines to be considered.
The current Guidelines restate and reinforce the dwelling density of 1:40 ha in open, potable water supply catchment areas. They make it clear that compliance with the Septic Tank Code of Practice is not of itself sufficient, a point that was made by Justice Osborn.[22] They refer to the provisions of the SPPF relating to the importance of water quality in water catchments[23] and section 53M of the Environment Protection Authority 1970, which provides that a municipal council must refuse a septic tank permit if a proposed onsite waste water/septic tank system is contrary to any state environment protection policy or waste management policy. SEPP Waters of Victoria requires the application of the precautionary principle to guide decisions about the protection and management of Victoria's surface waters when considering a permit for a septic tank system. The current Guidelines state:

[82]

There were exemptions to Guideline 1 in the Interim Guidelines as well, but they were not the same. The earlier Tribunal decision did not specifically address the exemptions. Justice Osborn did address them, but found that it was open to the Tribunal to treat both the criteria stated in Guideline 1 by way of exception to the 1:40 ha benchmark, as being met.[24] At the hearing before us, the council and Western Water suggested that although His Honour made findings on certain policies in the planning scheme, he did so without the knowledge that the first limb of the Interim Guidelines had not been met because the point had not been raised in the initial VCAT hearing and therefore it was not able to be raised before the Court.
Counsel for the Rozens placed great weight on Justice Osborn's findings about policy provisions in the planning scheme and whether or not they "covered the field" contemplated by the exceptions in the Interim Guidelines and consequently the current Guidelines. He submitted that the dwelling density in Guideline 1 did not apply because the situation fell within the exception.
We do not intend to undertake an exhaustive analysis of what Justice Osborn said on this point because he was considering the Interim Guidelines, which have now changed. We consider that the changes made to the exemptions to Guideline 1, in particular now requiring a catchment management plan, water catchment policy or similar project to address the cumulative impact of onsite waste water/septic tank systems as well as addressing land use planning issuses, was deliberately intended to exclude the range of old (and sometimes unavailable) reference documents noted at the end of various clauses of the planning scheme from being considered as fulfilling the requirements of the exemption. We consider this intention is evident from a comparison of the exemption to Guideline 1 in the Interim Guidelines and the exemption in the current Guidelines. The words underlined are additions to the current Guidelines: the strike through words are deletions from the Interim Guidelines.

[89]

We do not consider that any of the local planning policies in the planning scheme or the reference documents they refer to can be considered to be "a catchment management plan, water catchment policy or similar project addressing land use planning issues and the cumulative impact of onsite waste water/septic tank systems, which has been prepared for the catchment, and where the objectives, strategies and requirements of the plan or project have been included in the planning scheme", as contemplated by the exemption to Guideline 1. None of the policies or reference documents fulfil both criteria, in particular the cumulative impact criterion.
We were given a copy of a draft report prepared for Western Water, Coliban Water, Southern Rural Water and Goulburn Murray Water dated May 2007 and prepared by Ecos Environmental Consulting and titled Macedon Ranges Shire Water Quality Risk Assessment. The risk assessment is part of a broader project to develop a Catchment Water Quality Protection Policy for the Macedon Ranges Shire. The policy is intended to guide each of the four water authorities when assessing applications for planning permits referred pursuant to section 55 of the Planning and Environment Act 1987 and will enable each authority to adopt a consistent approach to the management of new land use and development in special water supply catchment areas. (These are the areas where the current Guidelines apply.) We consider that when complete, such a policy may represent the type of water catchment policy that the exemption to Guideline 1 refers. However, the policy has not been finalised and the Macedon Ranges Shire Water Quality Risk Assessment remains in draft form only.[25]
In these circumstances, we find that Guideline 1 of the current Guidelines has not been displaced. Accordingly, we find that Guideline 1 applies to this permit application and, as such, the density of dwellings should be no greater than one dwelling per 40 hectares.
In addition to the density of dwellings guideline, other guidelines in the current Guidelines apply to effluent disposal and septic tank system maintenance (Guideline 2); vegetated corridors and buffer zones along waterways (Guideline 3); buildings and works (Guideline 4); and agricultural activities (Guideline 5). We will deal with these guidelines, where relevant, later.
We note that the guidelines are cumulative. Therefore, just because the effluent disposal system for the four dwellings meets the requirements of Guideline 2, does not mean that the dwelling density of Guideline 1 does not apply.

[90]

The current Guidelines emphasise the application of the precautionary principle to guide decisions about the protection and management of water resources. It emphasises the finding made by Justice Osborn in Western Water v Rozen and Anor that the proper application of the precautionary principle requires consideration of the cumulative risk created by otherwise individually appropriate waste water/septic tank systems.
Dr Nick O'Connor of Ecos Environmental Consulting gave evidence on behalf of Western Water at the first Tribunal hearing[26]. In the hearing before us, evidence was given on behalf of Western Water by Dr Daniel Deere in a report entitled Risks to Drinking Water Quality from Development in Drinking Water Catchments (21 July 2009). Dr Deere is an expert in water quality management and public health microbiology.
His evidence related to the risks to water quality of development in open, potable water catchments, particularly the aspect of housing density and the risk to water quality, and application of the precautionary principle in managing catchment risk.
It was Dr Deere's expert view that the application for a planning permit for four dwellings cannot be supported as development and use of dwellings in an open, potable water supply catchment at a density less than 1:40 ha cannot be supported. He gave evidence that pathogens can result in human harm. Pathogens can contaminate waters in open water supply catchments and can present most risk when those pathogen sources are from human origins, including from waste water treatment plants. He emphasised that risks arose not so much from a properly functioning, well maintained waste water treatment plant , but from the failure of onsite waste water management systems. Exacerbating issues for the ongoing effective operation of onsite water management systems include institutional limitations, temporal limitations (as new systems becomes old) and human limitations (human error and/or deliberate changes to the operation of the onsite waste water system).
Dr Deere supported the 1:40 ha dwelling density limitation in both the Interim Guidelines and the current Guidelines because:
- It provides an adequate benchmark for protection of the water supply from human pathogens. It is not a precise rule, but rather a good rule of thumb that provides a buffer for things to go wrong.
- The density limitation of 1:40 ha provides for safe irrigation practices from onsite waste water management systems ensuring protection of the environment from salts, nutrients and hydraulic flows, as well as the protection of human health relating to the reduction and lack of movement for pathogens into water sources.
- Onsite waste water treatment systems present a higher risk to water quality, and higher densities of dwellings with such systems provide a higher water quality risk. He referenced a number of studies reporting poor compliance for onsite systems and a failure to meet performance criteria for aerated waste water treatment systems, which is the type of system proposed in this case.
- The dwelling density across the catchment already exceeds the limitation of 1:40 ha.
Dr Deere made the point that water quality in the Campaspe Reservoir is already compromised. In his view, the catchment is at a point where it is uncomfortably close to the limits in terms of current treatment systems. It is not yet at a point where Western Water needs to abandon its attempts to manage the catchment to maintain water quality and opt instead for the installation of much higher cost treatment systems. However, he emphasised that the margin of safety that the one dwelling per 40 hectare density limitations sought to achieve was not so great as to justify the risk of going below the 1:40 ha dwelling density if you have a choice.
He referenced various studies to demonstrate that engineering and management systems fail and this cannot be avoided. Often failure is due to human misunderstanding, lack of maintenance and human intervention resulting in non-conformance with installation and operation instructions. While onsite sewerage management systems are capable of producing good water quality outcomes at first installation, much of the focus is on the performance capability at installation. New systems eventually become old and therefore cumulative increases in onsite sewerage management systems could eventually lead not only to increased risk of failure but also to an increased number of systems failing in any one catchment. It is well established that at an institutional level, there is a very poor track record in ensuring that systems are installed, used and maintained appropriately, and for identifying failing systems.
Dr Robert van de Graaff gave evidence on behalf of the Rozens at both Tribunal hearings. The nub of his evidence in each case was that the proposed four new septic tank systems can have no discernable impact on water quality of the Campaspe River downstream of the proposed development. In his view, Western Water is unnecessarily concerned about the risk to water quality at Woodend. He believes that the exclusive focus on the possibility that a few (four) new septic tank systems on large lots averaging 18 hectare could cause contamination and therefore should not be permitted is entirely misplaced. He considers there is hardly any evidence that municipal water supplies have been impacted upon by septic tanks. Where they have, it was caused by special circumstances or extraordinary rainfall events mobilising contaminants in major runoff from agricultural land, as well as from the leaking municipal sewers, which then arrived at the intake of the water purification plants. In view of the various land uses already going on, especially agriculture, the risk of contamination of the river water is orders of magnitude higher than can be attributed to a small number of new septic tanks.
In his evidence, Dr van de Graaff brings a particular scientific approach to his analysis. He was dismissive of the policy approach embodied in the current Guidelines, which tends to take into account human failings and system failures. He also questioned whether isolated incidences of gastroenteritis in humans could always be considered "serious".
Mr Paul Williams also gave evidence on behalf of the Rozens about the aerated waste water treatment system proposed for each of the four dwellings and provided a land capability assessment for each lot. The waste water treatment system is a sophisticated, secondary treatment fully automated system that incorporates a multiple barrier approach to guard against conceivable sources of contamination as recommended by the Australian Drinking Water Guidelines.
Mr Williams' overall conclusions were as follows:

[93]

No issue was taken by any party with Mr Williams' evidence that if the waste water treatment system was installed, operated and maintained as recommended by Mr Williams, it would function satisfactorily, meet statutory requirements and would not result in a risk of contamination to surface or ground waters.
However, we consider the real issues are the risks associated with waste water treatment systems that do not function as designed (for various reasons) and the increased presence of people generally within the catchment.
Ideally, potable water supply catchments would all be closed. The quality of Melbourne's drinking water is a product of its closed catchments. But it is not an ideal world and there are many open potable water supply catchments that must be managed.
The draft Macedon Ranges Shire Water Quality Risk Assessment identifies a range of potential hazards which would affect water quality, including:
- Road/creek crossings on sealed and unsealed roads
- Houses
- Farm buildings
- High risk land uses, such as: intensive animal production, irrigated horticulture, cropping and cereals, and grazing modified pastures.
- Steep slopes
- High density housing
- Inadequate riparian buffers
- Change in agricultural practices
Implicit in this list of hazards is people. For example, higher density housing associated with rural lifestyle use involves not just additional septic tank/waste water treatment systems, but more horses and domestic pets, more use of chemicals, pesticides and sprays, and more direct water contact by people and animals. Perhaps if the risks posed by the presence of people within catchments were articulated more explicitly, as detailed by Dr Deere in his evidence, there might be a better understanding of the notion of cumulative risk rather than the current focus just on the risks presented by each individual septic tank/waste water treatment system.
There is a fundamental conflict between the evidence of Dr Deere and Dr van der Graaff regarding this issue of cumulative risk. At its simplest, the conflict can be characterised as faith in science versus a recognition of human fallibility and Murphy's law (i.e. if anything can go wrong, it will).
This inherent conflict between evidence given by Dr van der Graaff and by the likes of Dr Deere or Dr O'Connor has been previously commented upon by the Tribunal in Hobbs v Macedon Ranges SC[27] where the Tribunal upheld the council's refusal to issue a permit for subdivision of a rural property in an open, potable water catchment area. Application of the Interim Guidelines was in question and the Tribunal said:

[97]

Dr van der Graaff is a scientist whose area of expertise is in soil science. He admits in his evidence statement that he is not a microbiologist but "through my background in agricultural science, that incorporates various life sciences such as soil microbiology, botany, and plant physiology I have some useful understanding of the issues at hand."
By contrast, Dr Deere is a scientist whose areas of expertise are water microbiology and biotechnology and who has extensive experience in water quality management and public health micro biology.[28]
We have highlighted the difference in expert qualifications because it is necessary for us to indicate whose evidence we prefer. In this particular case, we prefer the evidence of Dr Deere to that of Dr van der Graaff in terms of assessing the issue of cumulative risk and whether the dwelling density of 1:40 ha identified in the current Guidelines should be applied.
We have great respect for Dr van der Graaff as a soil scientist and we do not doubt that in an ideal operating environment water flows through soils are as slow as he describes and consequently the risk of contamination to the Campaspe River from effluent is so small as to be negligible, as Dr van der Graaff says. Nor do we doubt that septic tank/waste water treatment systems when properly installed, operated and maintained effectively remove pollutants and pathogens from effluent. This is what septic tanks are designed to do and the Septic Tank Code of Practice has been developed to provide acceptable standards and criteria for the management of onsite domestic waste water disposal. The minimum setback distances described in the Code of Practice are a backup measure in case the system fails. There is no doubt that septic tanks can, and for the most part, do operate effectively to treat and dispose of sewerage and waste water on site.
However, Dr van der Graaff has far more faith in the operational characteristics and effectiveness of multiple barriers as a means of preventing contamination of water supplies than Dr Deere. In his evidence, Dr van der Graaff was dismissive of a formula or policy approach such as represented by the current Guidelines. He takes the view that:

[100]

Dr van der Graaff is sceptical about the various studies that are referred to in Dr O'Connor's report to the earlier Tribunal hearing and Dr Deere's report. In his view, most of the serious incidents of contamination can be attributed to factors other than the normal operation of septic tank systems. He judges the risk posed by the proposed development of four new homes and septic tank systems in terms of how they individually may affect water quality in the catchment and concludes that even if they did fail, they would not make a discernable difference.
In our view, this approach fails to assess the effect of four new dwellings and waste water/septic tank systems in a cumulative sense or to take account of human or system failings, or the other risks associated with human presence in the catchment, as identified by Dr Deere. An assessment of the risks posed by each system individually, rather than the cumulative risk of multiple systems in close proximity to the water supply system, was the approach adopted by the earlier Tribunal, which the Supreme Court rejected as not being the correct approach[29].
In his evidence, Dr Deere highlighted that it is when waste water/septic tank systems are not functioning optiminally and other things occur, such as extreme rainfall events, that problems can arise. He emphasised that the state of knowledge concerning catchment management, the management of drinking water systems and the vast array of contaminants that may present in drinking water has advanced dramatically in recent years. This reflects the view expressed in the Australian Drinking Water Guidelines. Dr Deere instances knowledge about human viruses as one significant area where the state of knowledge has advanced. He says that human viruses are a problem and that septic tanks do not deal with them or neutralise them in the same way that they can deal with and neutralise ecoli and other pathogens. Viruses may contaminate water supplies both from disposal of effluent from septic tank waste water treatment systems and from direct contact with surface waters (eg swimming or boating). Whilst Dr van der Graaff had not taken them into account, Dr Deere emphasised that Western Water needed to do so.
Invariably, says Dr Deere, contamination is a result of human error, human failing, ageing systems, lack of maintenance and monitoring, and the failure by people to appreciate the implications of how their system works in order to appreciate the possible consequences of poor operation and maintenance. All these factors increase the risk of contamination. For this reason, a limitation on the density of dwellings to protect water quality was one appropriate measure to limit the risk from treated effluent affecting environmental and human health. Limiting dwelling density is just one element in the multi barrier approach to ensuring safe drinking water that is incorporated in the Australian Drinking Water Guidelines.
As we have said, we accept the evidence of Dr Deere. We consider that every time an additional dwelling is permitted in the catchment, an additional, albeit unquantifiable, risk, is created of potential contamination to the quality of water. Individually, the risk from each dwelling may be minimal but the cumulative effect of these incremental risks, coupled with all the other risks which exist, mean that dwelling density in open potable water supply catchments must be curtailed.
We accept that the special needs of open potable water supply catchments justify a limitation on dwelling density that operates over and above any zone provisions. In the absence of a specific water catchment overlay, the Government has clearly expressed a strong policy position to limit dwelling density to one per 40 hectares by adopting the Guidelines: planning permits in open, potable water supply catchment areas (May 2009).
We consider that planning permit applications in open potable water supply catchments should be determined by reference to the policy in the current Guidelines; that each of the individual guidelines should be applied cumulatively; and that the current Guidelines should take priority over competing policy objectives or decision guidelines in the planning scheme in the event of a conflict. We endorse guiding principle 1 of the Australian Drinking Water Guidelines that protection of water sources is of paramount importance and must never be compromised.
We therefore conclude that an application of the current Guidelines, in particular the density of dwellings guideline of one dwelling per 40 hectares, must lead to a conclusion that the current permit application for four dwellings cannot be supported.
The 1:40 ha density is a precautionary measure. The figure of 40 hectares has not been selected on a scientific basis but as a rule of thumb. We accept that experience indicates that water from catchments with dwelling densities at around this level require a certain level of treatment and higher densities require much higher levels of treatment, which are more expensive.
We accept the advice of Western Water that the Campaspe River catchment is at a point which is uncomfortably close to the limits in terms of current treatment systems. This makes managing the catchment to minimise the cumulative impact of further risks very important. We consider that a proper application of the precautionary principle in the present case would justify requiring a dwelling density of 1:40 ha as advocated by Western Water and in line with the current Guidelines.
Given the primacy of water quality considerations in the planning scheme, we also consider that four dwellings cannot be supported having regard to the zone and overlay provisions applying to the land.
The question now is whether any lesser number of dwellings should be permitted.

[101]

We acknowledge that the failure to provide any guidance about how to measure dwelling density under the current Guidelines is a shortcoming, although not necessarily the flaw identified by the previous Tribunal[30].
There are different approaches to calculating the density depending on whether the site alone is considered, an area within a given radius of the site, or the catchment as a whole. We consider that more guidance should be given in the Guidelines to this issue. Nevertheless, the absence of such guidance does not detract from the weight to be placed on the current Guidelines. It simply means that there is some flexibility to apply the Guidelines in a pragmatic way.
By any criteria, the density of 1:40 ha is exceeded by the current permit application for four dwellings. Mr Glossop estimated the density to be 1:18 ha. On the other hand, to allow only one dwelling on the total site area of 72.35 hectares would mean that the density was well exceeded.
At the hearing, both the council and Western Water conceded that in terms of applying the current Guidelines, two dwellings would be acceptable, which on a site specific basis would result in a density of approximately 1:36 ha. The Rozens said that if the Tribunal would not support their application for four dwellings, it should grant a permit for two dwellings rather than one only or rejecting the application completely.
If we accept that two dwellings could possibly be acceptable from a water quality perspective under the flexibility offered by the current Guidelines, whether a permit be granted for one dwelling or two then needs to be determined by reference to the other provisions of the planning scheme. Under the Rural Conservation Zone, a permit is required for use and development of a dwelling. There is no minimum lot size. A permit for development is also required under the ES04. In deciding whether to grant a permit, there are a range of decision guidelines and policies to consider, apart from those relating to water quality. In our view, the most relevant of these factors are:
- landscape and visual impact; and
- rural/agriculture and environmental issues.
We now turn to the issue of whether to grant a permit for one dwelling or two[31].

[102]

The land is cleared grazing land falling gently towards the Campaspe river. A ridge line running through Lot C enjoys an eastward panoramic view towards Mt Macedon. There are some isolated mature remnant trees along the river and a copse of mature remnant eucalypts on the ridge on lot C.
According to a report prepared by Ms Carol Frank Mas, for the first Tribunal hearing, generally that the remnant trees are in a stressed state after years of those for grazing, soil compaction, weed invasion and low rainfall. There are dead and dying trees along the river, and there is no evidence of saplings or seedlings by way of regeneration.
Visually, the land is mostly screened from Ashborne Road and Chambers Road by existing road side vegetation, but there are open views towards the site from surrounding properties across the river and from Falloons Road.
Landscaping plans prepared by Ms Frank-Mas on behalf of the Rozens provide:
- For retention of existing remnant native vegetation;
- Revegetation, particularly along the Campaspe River;
- Further revegetation around the existing outcrops of remnant vegetation in selected positions on Lots B and C;
- A weed eradication program;
- The provision of fencing around clumps of remnant trees.
New vehicular access is intended to service each lot although it is not anticipated there will be any removal of roadside vegetation.
The site is about 7km southwest of the Woodend township, which has a population in the order of 4000 persons, although it is expected to grow to about 5200 by 2030.
Land generally to the east of the site towards Woodend and on the other side of the Campaspie River is occupied by smaller land holdings. Land to the north and west of the site is predominantly farming land, although there are elements of recent subdivision and dwelling approvals particularly to the immediate north of Lots A and B. The exception is land to the west, around the Ashbourne hamlet, which contains a mix of older and more recent housing on smaller lots, but no shops or community facilities. Effectively, they constitute a rural-living style land usage.
From a visual perspective, we consider that two dwellings could be accommodated without detracting unduly from the landscape character - one on combined lots A and B and one on combined lots C and D. We consider that two dwellings would represent a transition from the smaller land holdings and higher densities of dwellings to the east and the more sparsly settled land to the north and west. We consider that if the landscaping plans are implemented, the proposal will visually improve the landscaping quality of the site.
One of the purposes of the Rural Conservation Zone (repeated in Schedule 1) is:

[135]

The Rozens did not enumerate any particular benefits that would result from four new dwellings or even two dwellings. Instead, there was an underlying assumption that because the land is the form of four separate allotments, a house should be permitted on each lot. We consider that there is no basis for such an assumption having regard to all the policy material in the planning scheme. The scheme consistently emphasises the unacceptable detriment that would result to the important values of the area if all subdivided land in the area were to be developed for residential purposes[37].
The primary benefit advanced by the Rozens for allowing dwellings on the land is that the implementation of the revegetation/management plan[38] would be certain to achieve environmental benefits. These benefits would be consistent with various aspects of planning policy. They say that these benefits must be balanced against the alleged risk of detriment to water quality that an additional two dwellings on this land might cause.
We do not accept this argument. We agree that the planning scheme acknowledges the opportunity to use the grant of a permit for a dwelling as the catalyst for achieving positive environmental outcomes. But when evaluating the positive environmental outcomes that may result from allowing one or two dwellings on this land, we have concluded that the greater chance of success and long term improvements will result if the land is retained in a single holding and managed as a single unit.
The other clear benefit to the Rozens in allowing a permit for two dwellings rather than one, is the greater economic return they are likely to achieve if they sell the land. However, the financial return to a landowner is not a relevant planning consideration that we should be influenced by.
We are responsible for applying the policies and objectives of the planning scheme and other documents and guidelines that we are required to have regard to by virtue of the planning scheme and the Act. On balance, a consideration of these matters and the evidence and facts of this case lead us to the conclusion that the preferable outcome is to grant a permit for only one dwelling, not two.
We acknowledge that both the council and Western Water conceded that two dwellings would be acceptable. Nevertheless, we are not bound by this concession. We consider that whilst two dwellings at a density of 1:36 hectares might be supportable on water quality and catchment management grounds, all other things being equal, having regard to issues associated with sustainable land management and agricultural productivity, we consider that one dwelling is a preferable outcome. This will result in a dwelling density for this land that is considerably more than the 1:40ha density specified in the current Guidelines instead of a density that is slightly less. We regard this as a beneficial outcome for the catchment because evidence and policy all indicate that the lower the dwelling density in open, potable water catchments the better.

At a glance

Court

Decision date

Source

Judgment (186 paragraphs)

Rozen v Macedon Ranges SC (includes Summary) (Red Dot) [2009] VCAT 2746 (23 December 2009)

Parties

Legislation Cited (1)