The decision of the Responsible Authority is affirmed. In permit application TP 514/2008 no permit is granted.

Mr Peter O'Farrell, Barrister instructed by Victorian Workcover Authority Legal Services.

Did not participate in the hearing but was represented at the hearing by:

The proposal is to construct two, three-storey buildings for 66 dwellings with car parking within semi basements.

Application under section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

The subject land is a reasonably regular lot located on the south-east corner of the intersection of Francis Street, and Stephen Street in Yarraville. The land has a frontage to Francis Street of 50.95 metres and an area of approximately 4317 square metres.

1. This is an application in respect of a permit application for the construction of two, three-storey buildings for 66 dwellings at 200 Stephen Street, Yarraville. The debate in relation to the application is unusual, different to that which ordinarily surrounds a proposed medium density residential development. There is no real debate about design standards or in more conventional terms the site responsiveness of the proposed development. Rather, the issue to be decided is whether or not the land is suited to a medium density development having regard to its location proximate to Mobil's[1] Yarraville Terminal, a bulk fuel storage and distribution facility[2].
2. This issue was debated before us on the basis of planning scheme provisions and more particularly the local planning policy framework, and on the basis of the orderly planning for the precinct[3].
3. We had regard to:
   • Planning policy, in particular the Clause 22.02-3 Francis Street: Mixed Use Zone Policy 3;
   • The EPA policy AQ2/86 Recommended Buffer Distances for Industrial Residual Air Emission and the concept of a reverse buffer, and;
   • Approaches to orderly planning for risk.

We conclude that all of these considerations suggest that there should be a buffer between new or more intensive residential development and a Major Hazard Facility such as the Yarraville Terminal. On this basis we decide that no permit should be granted.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
   1. The proposed residential development is inconsistent with the State Planning Policy Framework of the Maribyrnong Planning Scheme generally and more particularly, those policies related to Environment (Clause 15. 04 - Air Quality) and Economic Development (Clause 17.03- Industry)
   2. The proposed residential development is located within the recommended buffer distance of the Mobil Yarraville Terminal which is a registered Major Hazard Facility. In addition, the provisions and requirements of the EPA publication 'Recommended Buffer Distances for Industrial Residual Air Emission' (AQ 2/86) have not been satisfactorily addressed by the proponent.
   3. The density of residential development on the site is inappropriate as the site is affected by low frequency - high consequence events involving dangerous goods at the Mobil Yarraville Terminal The proposal will pose an unacceptable level of risk to future residents in the development.
   4. The proposed residential development is inconsistent with Council's local planning policy generally and more particularly, Clause 2202-3 'Francis Street Mixed Use Zone Policy 3' of the Maribyrnong Planning Schema
   5. The proposal does not meet the objectives of Clause 55 of the Maribyrnong Planning Scheme in respect of:
      • Integration with the Street (Clause 55.02-5)
      • Dwelling Entry (Clause 55.05-2)
      • Front Fences (Clause 55.06-2)
   6. The proposal is contrary to the principles of proper and orderly planning.

1. The parties and the witnesses 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. The Tribunal inspected the subject land and its locality.

1. The subject land is a large, vacant, reasonably regular lot located on the south-east corner of the intersection of Francis Street, and Stephen Street in Yarraville. Francis Street is within a Road Zone and is notorious for the high volume of heavy vehicles.
2. The land was the school oval of the former Yarraville primary school. The land to the west within the Mixed Use Zone is the balance of the former primary school land. The original primary school building which fronts onto Francis Street has been redeveloped as a community centre. To the rear of this building is a 46 dwelling residential development approved in 2001. The residential development comprises an apartment building resulting from the redevelopment of a more modern school building and some new townhouses.

Fig 1 Zoning and cadastral information for the land and its environs.

1. To the north and east of the land are small dwellings also within the Mixed Use Zone. These dwellings were largely developed in the first half of the 20th century. To the south is the Yarraville Electrical Terminal Station.
2. Approximately 800 metres to the north west[4] of the land is Yarraville Village a vibrant neighbourhood activity centre. Approximately 180 metres to the east of the land, over Hyde Street, is industrial land including Mobil's Yarraville Terminal located on the south east corner of Hyde Street and Francis Street.

1. The proposal is to construct two, three-storey buildings for 66 dwellings with car parking within semi basements, ie:
   • The northern building will contain 44 two bedroom dwellings, the southern building will contain 20 two bedroom dwellings and 2 one bedroom dwellings.
   • All dwellings are provided with balconies or ground level private open space ranging from 8 sq metres to 123 sq metres.
   • An internal road between the 2 buildings connects Stephen Street to Fraser Street.
   • Access to the basement car parks is via the private road which forms part of the extension of Stephen Street.
   • Each dwelling is provided with one car space. A total of 80 car spaces are provided in the two basements and 14 of these spaces will be set aside for visitors. An additional five indented car spaces are to be provided along the south side of the internal road.
   • 56 bicycle rails are provided above the parking spaces for residents. In addition, 7 bicycle spaces are proposed near the north western corner of the southern building for visitors.
   • Site coverage is 45% or 1938 square metres. Permeability is 27.8% or 1200 square metres.
   • The architecture is contemporary in character featuring extensive glazing and a variety of external finishes including timber wall panelling, render, glass and timber louvres.

1. Prior to the commencement of the hearing the permit applicant sought access to the document Mobil Oil Australia Pty Ltd - Safety Case for the Yarraville Terminal - Document No. Yarraville - RA - 0050, Revision 1, June 2007, a document prepared by Mobil Oil Australia Pty Ltd as operators of the Yarraville Terminal for Workcover in accordance with the provisions of the Occupational Health and Safety Regulations 2007. Mobil agreed to provide relevant extracts of that document to the parties and their witnesses subject to undertakings as to confidentiality and we made orders to that effect.
2. Extracts of the safety case were provided to the Tribunal and to specified parties and witnesses who had signed the confidentiality agreement. Council instructed its solicitors not to sign the agreement, Mr Cooper, Council's witness however was permitted to sign the agreement and was provided with a copy of the extract. This had some effect on the conduct of the hearing. In the end the safety case proved to be useful in part because of its contents but more particularly because of the inferences that could be usefully drawn from it, particularly those drawn by the expert witnesses.

1. In this application the issue to be decided is whether or not the land is suited to a medium density development having regard to its location proximate to Mobil's[5] Yarraville Terminal, a bulk fuel storage and distribution facility[6].
2. This issue is debated having regard to the planning scheme provisions or more particularly the local planning policy framework, and on the basis of the orderly planning for the precinct, notwithstanding the inclusion of the land within the Mixed Use Zone.

1. Within the planning scheme generally there are policies which encourage medium and high density redevelopment of suitable sites well located close to community facilities. Putting aside for the moment the land's proximity to land within an Industrial 1 Zone, and the Yarraville Terminal, the subject land is undoubtedly one such site, and its redevelopment as proposed would be strongly encouraged.
2. On the other hand, there are also numerous planning policies recognising the value of industrial land to the economy, and therefore the overall wellbeing of the community. These policies encourage the protection of such land from encroachments, particularly residential encroachments, which can compromise its utility for its industrial purpose.
3. In this case the zoning of the land and the local planning policy framework has sought to reconcile these broader policy positions in respect of the land and the particular precinct within which it is located. The precinct is defined by the local extent of the Mixed Use Zone as shown in Figure 1 above[7].
4. Within the Mixed Use Zone a dwelling is an as of right use. In addition to the purpose of the zone to implement local planning policy other purposes of the zone are,

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects the neighbourhood character.

1. Clause 22.02-3 Francis Street: Mixed Use Zone Policy 3 is an area specific policy applicable to this precinct. The policy basis for this policy is an identified need to provide adequate buffers between industrial and residential areas. The policy objective, and the most relevant of the policy statements are set out below:

To encourage the transition from residential to non-residential activity in the long term.

• Encourage and support the consolidation of existing residential properties in this precinct for future development of a light industrial and industrial/commercial nature compatible with the continued, but declining, presence of dwellings.
• Discourage residential subdivisions and developments which will increase the number of new dwellings within 300 metres of an Industry 1 Zone.

1. We observe that the policy seeks to effect change in the long term. The policy anticipates different outcomes within the precinct area distinguishing those parts of the precinct which are within or beyond 300 metres of an Industrial 1 Zone.

1. There is undoubtedly a tension between the fact that within a Mixed Use Zone, a dwelling is a permitted use and the objective of the Francis Street MUZ Policy to encourage a transition from residential to non-residential activity.
2. It is argued strongly on behalf of the permit applicant that we should give little weight to this policy because:
   • the policy is entirely inconsistent with the zone provisions;
   • the policy is old and ineffective;
   • Council has failed to consistently apply the policy; and
   • the policy is unfair.

1. The zone and the policy date back to 1998 and were both considered in the Maribyrnong New Format Planning Scheme Panel Report. The panel regarded the zone as being a transitional zone relating to land which lies within the buffer area required while allowing a wide range of appropriate uses to replace residential properties over time whilst also recognising the rights of existing dwellings.
2. The objective of the Francis Street MUZ Policy seeks to address a difficult planning task, the transition of an area over time from one land use to another.
3. The use of a Mixed Use Zone in combination with the Francis Street MUZ Policy is the approach chosen by Council to utilise the VPP planning tools to achieve this end. It is an approach which was ultimately supported by the panel considering the new format planning scheme. It is in effect an attempt to reconcile existing rights and expectations against the need for change.
4. We do not think that the inherent difficulty in the resolution of this planning problem can be used as a basis for diminishing the weight which should be afforded the planning policy and its underlying planning basis.

1. The policy is 12 years old, and in that period there has been no transition from residential use to non-residential use within the precinct. The policy is condemned on behalf of the permit applicant as being old and ineffective.
2. In relation to this argument we think we need look no further than the Industrial 3 Zone between Hyde and Whitehall Streets. This land has been in a 'light' industrial zone of one type or another for 30 to 40 years. Even now there are a relatively significant number of remnant dwellings within the area, and much of the change to industrial or commercial activity has occurred in quite recent times. Twelve years is not a long timeframe to achieve this sort of change envisaged by the Francis Street MUZ Policy. It is too soon to judge whether or not the policy is or will be effective.

1. It is argued that Council has been inconsistent in the implementation of its policy and that as a consequence we should give little weight to the policy in our decision.
2. We were referred to three decisions within the precinct relating to new residential uses. These decisions are briefly described below:
   • In 2001 Council considered the first application for the redevelopment of the Primary School site, a proposal for 46 new dwellings largely to be achieved by the conversion of an existing school building into an apartment building.

In relation to this application Council consulted with the EPA in respect of the EPA policy AQ2/86 Recommended Buffer Distances for Industrial Residual Air Emission. The EPA ultimately advised Council that it would accept the assumed 30 metre reduction[9] in the 300 metre buffer distance derived from this policy based on the pollution control measures in force at the terminal. The officer then turned his or her mind to the Francis Street MUZ Policy and concluded:

The proposal strictly does not achieve the intent of the policy, however the development will improve the amenity for housing adjacent to the site. Given that the western part of the policy area adjoins residential land use it is considered that this portion of the site would be better suited to residential development, rather than a form of mixed use industry that may create future land use issues/conflict that may be difficult to resolve.[10]

• In 2007 the Tribunal directed that a permit be issued for two dwellings at 187 Stephens Street. Council's reasons for refusal of permit did not include any ground relating to the Francis Street MUZ Policy, and written reasons for the Tribunal's decision do not indicate that the issues addressed by the policy were considered by the Tribunal in its decision.
• In 2005 Council issued a permit for a new dwelling on a residential lot in Globe Street. The officer in his or her report directly considers the Francis Street MUZ Policy and having regard to the character of development and the history of change in Globe Street concluded that construction of a new dwelling on the subject land would therefore not affect the objective of the policy.

1. In relation to the decision in respect of 187 Stephens Street, on the surface there appears to have been a failure to consider the Francis Street MUZ Policy in this case. However we do not think it can be reasonably held that the other two decisions did not carefully consider the Francis Street MUZ Policy and did not arrive at a decision reasonably open to the Council in the circumstances.
2. While the first stage of the primary school redevelopment is somewhat less than 300 metres from the Industry 1 Zone, it is not substantially so. Neither the first primary school decision nor the Globe Street decision could be reasonably regarded as being substantially inconsistent with the policy to discourage developments which will increase the number of new dwellings within 300 metres of the Industrial 1 Zone.

1. We can accept that in the current climate a significant residential development of the type proposed would be substantially more attractive from an economic perspective than some form of industrial/commercial development of a similar scale. Therefore, a decision which gives effect to the Francis Street MUZ Policy[11] is likely to have a significant effect on the profitability of the permit applicant's enterprise.
2. It is argued on the applicant's behalf that this is unfair. Unfairness may have been relevant to our decision if Council had capriciously disregarded the policy and rendered it useless, but this is not our finding.
3. We acknowledge that our decision does adversely affect the interests of the permit applicant. It is sometimes the case that planning schemes can dramatically restrict a land owners options for the use of land. Regrettably this is one of those cases although to an important degree our decision is based on planning provisions which have been in place since 1998.

1. In relation to this policy debate we considerer that the Francis Street MUZ Policy is neither stale nor irrelevant, it is a policy to which we should give appropriate weight.
2. The weight to be given to this policy is influenced by the fact that it is applicable to a very small precinct, the importance of this policy is not diminished by its generality. The policy itself calls on us to focus a particular attention on the outcomes it seeks to achieve on land, such as the subject land, which is within 300 metres of the Industrial1 Zone.

AQ 2/86 Recommended Buffer Distances for Industrial Residual Air Emissions

1. This EPA Policy document is referenced in Clauses 15.04 Air Quality and 17.03 Industry[12]. This policy, and the way in which it is implemented in the planning scheme, is relevant to the arguments put forward by Mr O'Farrell in particular, in relation to the idea of a reverse buffer[13], a buffer designed to protect the ongoing activities of an emitting industry. The following extracts from the explanatory parts of the policy document are helpful to an understanding of its purpose:

Where sensitive land uses are not sufficiently separated from industries, amenity and quality of life in the adjacent area may be reduced, due to odour, dust or noise emissions, creation of a potential hazard or aesthetically. Because it is not always possible to eliminate impacts on adjacent areas, it is unwise to permit land uses which would be sensitive to such reduced amenity to be located within the affected area.

Unlike controlled, routine emissions, these "industrial residual air emissions" (IRAEs) are often intermittent or episodic in occurrence and may originate at or near ground level. Provision of an adequate buffer distance allows the emissions to dissipate without adverse impacts on sensitive land uses.

IRAE buffer distances should be implemented taking into considerations the need for preventing sensitive uses encroaching on industry as well as industry encroaching on sensitive uses.

1. Set out below are the buffer distances relevant to the debate in this case:

Storage of petroleum products and crude oil in tanks exceeding 2,000 tonnes capacity:

1. Our order dated 16 February 2010 included an order[14] requested by Mr Townshend which sought to resolve the debate about whether or not the petroleum tanks at the Yarraville Terminal had fixed or floating roofs[15]. In the event, the order did not have its desired effect, however, the order was rendered irrelevant because the safety case contained the required information.
2. The Safety Case indicates that there are a mix of tanks with and without floating roofs. All of the tanks used to store unleaded petrol have floating roofs.
3. Mr Thomas expressed the opinion that it was the presence of benzene, a carcinogen, in unleaded petrol which the likely focus of the EPA's policy. He therefore submitted that as the tanks used for the storage of unleaded petrol are roofed, it would be appropriate to adopt the 100 metre measure as the buffer distance.
4. We do not think we can accept that the presence of benzene in unleaded petrol was the sole criterion upon which the EPA based its determination of an appropriate buffer distance. This conclusion is supported by Mr Thomas's own anecdote in relation to the importation of Singapore Crude at the Yarraville Terminal. Mr Thomas advised the Tribunal that he was informed that Mobil had ceased to import Singapore Crude to the Yarraville Terminal because odours from this crude oil had been a source of complaint from the nearby residential community. This anecdote suggests to us that petroleum products other than unleaded petrol can be a source of unacceptable air emissions.
5. We think our approach should be that of the EPA in 2001, there are a mix of tanks with and without floating roofs, the buffer distance derived from AQ2/86 is 300 metres, but that minor variations to this buffer distance is possible having regard to the pollution control measures employed at the Yarraville Terminal.

1. In 2005 there was a devastating vapour cloud explosion as a result of the overfilling of a petrol storage tank in a fuel storage and distribution facility at Buncefield in the United Kingdom. This incident has considerably changed the way in which risk is assessed for such facilities. As a consequence risk has been a significant issue in this application with both the Council and the permit applicant calling witnesses expert in risk assessment. We accept that the risk of low frequency - high consequence incidents at Major Hazard Facilities is a relevant planning consideration.
2. The witnesses, Mr Cooper and Mr Thomas originally prepared their evidence without the benefit of the safety case, therefore the evidence was based on a series of assumptions about the operation of the Yarraville Terminal. Mr Cooper essentially concluded that the risks were unacceptable while Mr Thomas did not.
3. Both witnesses prepared supplementary statements having studied the extracts of the safety case provided in accordance with the Tribunal's orders and both witnesses were cross-examined. In our opinion the outcome of this process of evidence and examination is that although the safety case is dated 2007, it has been revised and it is therefore likely that the safety case has had regard to the most current the scientific work done in assessment of the Buncefield incident.
4. The operators of Major Hazard Facilities are required to produce a safety case for the approval of Workcover to ensure that they are taking all practicable steps to reduce risk to the community as a consequence of the operations of the facility. The preparation of the safety case is governed by its own regulatory regime. We should accept the safety case on the basis of its purposes. We think we can reasonably conclude, from the safety case and the evidence presented at the hearing that the 10-5 risk contour is contained entirely within the site of the Yarraville Terminal, and the 10-7 risk contour will be at or just beyond the boundary of the Yarraville Terminal.[16]
5. How should we respond to these conclusions? While the risk of death and serious injury beyond these contours is negligible, it remains the case that nearby properties would be very proximate to a devastating event. What is the proper planning approach?

1. The planning scheme provides no guidance as to the appropriate planning approach to risks associated with Major Hazard Facilities. Nevertheless, we were referred to planning approaches adopted in the United Kingdom and some preliminary work being done by the Major Hazards Advisory Committee with Worksafe in Victoria. We think that these examples are useful illustrations of how risks imposed by one land use on another more sensitive land use should be managed in a planning context.
2. In the United Kingdom the Health and Safety Executive[17] would advise against a residential development if the development was within 250 metres of the bund surrounding the tanks of a large scale petroleum storage site.
3. In Victoria, the Major Hazards Advisory Committee and Work safe are working on a draft document entitled Advice on Land Use Planning near a Major Hazard Facility. In the draft document there is defined an outer area, beyond the 10 -7 risk contour in which the consequence of a credible incident is not likely to cause a fatality, but persons present may suffer some adverse effects, or difficulty in responding to an emergency may result in injury or harm. In respect of a single Major Hazard Facility studied for the purposes of this document the Outer Area is all the area within a buffer extending beyond the10 -7 risk contour. For the specific facility dealt with by the draft document the buffer is greater than 300 metres. The draft document concludes that within an Outer Area, Worksafe would advise against land used for residential use.
4. If either of these regimes were applicable to the current application, the policy of the relevant safety agency would be to advise against such development.
5. The Buncefield incident drew attention to a need for a planning response to low frequency high consequence incidents associated with Major Hazard Facilities. Unsurprisingly the approaches discussed above both adopt the concept of a buffer which extends beyond the point at which there is an acceptably low risk of death. This is essentially the same approach traditionally adopted within land use planning in respect of the separation of land uses on the basis of amenity considerations. Indeed risk is an aspect of amenity. This traditional land use planning approach is also the approach adopted by the Francis Street MUZ Policy and AQ2/86.
6. We raised the issue of the approach adopted by both the Health and Safety Executive, and the Major Hazards Advisory Committee with Mr Townshend and invited further written submissions in respect of the issue raised. Submissions were made. We make the following observations about these submissions:
   • We have given no weight to these policies in the Lyndale and Black[18] sense. We must decide the correct planning response to the evidence of risk before us. These documents are merely illustrative of the approach taken by others and give support to the decision we have made in relation to the balance to be struck between relevant and competing planning policies.
   • The objective of clause 22.02-3 does not directly reference the creation of a planning buffer, however the objective and the associate policy statements are a response to a policy basis which recognises the need to provide adequate buffers between industry and residential areas.
   • There are dwellings which exist as a consequence of the history of development of the area which would be subject to risks greater than or equal to the proposed dwellings. However, the proposed development will more than double the dwelling density in that part of the precinct which, like the subject land, is east of Stephen Street and within 250 metres of the Yarraville Terminal.
   • We do not agree that risk level within 250 metres of the Yarraville terminal is such that there need be no discrimination between land uses, see paragraph 48 above.

1. We have considered at the issue of the suitability of the subject land for medium to high density residential development having regard to its proximity to land in the Industrial 1 Zone or more particularly the Yarraville Terminal having regard to:
   • Planning policy, in particular the Francis Street MUZ Policy;
   • AQ2/86 and the concept of a reverse buffer, and;
   • Approaches to orderly planning for risk.
2. All of these considerations lead to a conclusion that there should be a buffer between new or more intensive residential development and a Major Hazard Facility such as the Yarraville Terminal. The directly applicable documents the Francis Street MUZ Policy and AQ2/86 would suggest an appropriate buffer is in the order of 300 metres. On this basis it is our conclusion that the land is an unsuitable site for a medium to high density residential development. No permit should be granted.

[2] The Yarraville Terminal is defined as a Major Hazard Facility under the Occupational Health and Safety Regulations 2007.

[3] For the purposes of our reasons the precinct is the area affected by Clause 22.02-3 Francis Street: Mixed Use Zone Policy 3.

[6] The Yarraville Terminal is defined as a Major Hazard Facility under the Occupational Health and Safety Regulations 2007.

[7] To a minor degree Figure 1 truncates the full extent of the Mixed Use Zone8 to the south on Hyde Street

[9] The actual reduction is closer to 50 metres.

[11] A decision which we say follows on from the decision of Council in 2001 to allow the redevelopment of the existing primary school building for residential purposes, on that portion of the site.

[12] Clause 52.10 Uses with adverse amenity potential, does not apply to the subject application, it is arguably relevant to the "reverse buffer" issue. However, there was considerable debate about its relevance. It has not been necessary for us to consider clause 52.10 independently of AQ 2-86 from which it is derived.

[13] Mr O'Farrell referred us to a number of decisions of the Tribunal in which he argues that the concept of a reverse buffer was applied, ie: Napolitano v Greater Shepparton CC [2006] VCAT 2098, Boyer v Strathbogie SC [2004) VCAT 1624, Sandow v Moira SC 12004] VCAT 1998; Weightman V Murriridiridi SC arid Goulburn Valley Water [2005] VCAT 1097.

[15] It was generally accepted that another technology, floating blankets, were equivalent to floating roofs.

[16] At the 10-5 risk contour, it has been assessed on the basis of accepted criteria that there is an individual risk of fatality from potential incidents of 1 chance in 100,000 years at the 10-7 contour it is 1 chance in 10,000,000 years.

[17] The Health and Safety Executive appears to be the equivalent of a referral authority under our system in circumstances similar to those prevailing in this case.

[18] Lyndale and Black v MMBW (1983) 1 PABR 207.