In permit application no. TP03/271, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to issue.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by T Sandow & C Morton seeking review of a decision made by the Moira Shire Council ("the Council") to refuse to grant a permit in permit application no. TP03/271. A Notice of Refusal was issued on 11 November 2003. The Application for Review was lodged on 16 March 2003.

2 By order dated 3 May 2004 Senior Member Horsfall granted leave to extend the time for the lodgement of the Application for Review and to amend the name of the permit applicant and Applicant for Review to "Trent Sandow and Cathy Morton". At the Hearing I granted leave to further amend the documentation to refer to "Trent and Cathy Sandow".

3 The subject site is located on the south-west corner of the Benalla-Yarrawonga Road and Havenstock Drive, around 3 kilometres from the centre of Yarrawonga. It has an area of some 2.5 hectares and is occupied by a dwelling and large shed that are positioned toward the Havenstock Drive frontage. The rear of the land is open with recent plantings evident.

4 The subject site is part of a 26 lot subdivision that I was advised was completed in 1979-80. All of the lots created at that time were of a similar size as the subject land (ranging from 2.37 - 2.51 hectares) and several have since been further subdivided. Many but not all have dwellings.

5 To the north of the 26 lot subdivision is an industrial area (Industrial 1 Zone) and to the east of the Benalla-Yarrawonga Road is the Yarrawonga Wastewater Treatment Plant ("the treatment plant").

6 It is proposed to subdivide the land into five lots. Lot sizes would vary from 4,009 square metres to 4,817 square metres. Lot 1 would contain the existing dwelling and Lot 2 would include the existing shed. Both would be accessed from Havenstock Drive. The three lots to the rear/south would be accessed from a new common roadway located along the eastern site boundary abutting the Benalla-Yarrawonga Road. It is proposed to undertake additional and significant plantings on the land.

7 Mr Sandow referred to the possibility of a four lot subdivision (merging Lots 1 and 2) and the Applicants' willingness to enter into a Section 173 agreement to acknowledge the presence of the treatment plant.

8 The subject site is zoned Low Density Residential under the provisions of the Moira Planning Scheme ("the Scheme"). A permit is required to subdivide the land and the minimum lot size is 4,000 square metres. The decision guidelines of Clause 32.03 require consideration of the State and Local Planning Policy Frameworks and Clause 56.

9 No Overlays apply to the site. The Benalla-Yarrawonga Road is within a Road 1 Zone and VicRoads offered no objection to the proposal.

10 A number of other Clauses are relevant to this Application, particularly Clauses 11, 15.04, 18.01, 19.01, 19.03, 21 and 65 (general decision guidelines and decision guidelines relating to subdivision).

11 I have considered the submissions presented assisted by my inspection of the subject site and locality subsequent to the Hearing. Below I set out my findings in relation to the key issues in this Application having regard to the provisions of the Scheme. The key matter is whether the subdivision is appropriate having regard to the proximity of the subject land to the treatment plant, although there are other issues on which I comment.

12 Before turning to the key issues, I refer to some of the main points made by the parties in their submissions.

13 Mr Fenn stated that the Council had refused the application based on an objection by North East Region Water Authority ("the Authority"). He said that Council had not otherwise fully considered the merits of the proposal but may have concerns in relation to the intensity of the subdivision in the context of lots in the area. He expressed some concern about the access to Lots 3, 4 and 5 despite no objection from VicRoads.

14 Mr Ryan submitted that it would be poor planning to allow more dwellings within the buffer area of the treatment plant, thereby increasing pressure on the Authority to relocate the plant[1]. He said that the Authority assumed management responsibility for the plant in 1997 and in 2001 engaged a consultant to review buffer distances for all of the Authority's wastewater treatment facilities. A copy of the consultant's report was tendered and Mr Ryan explained how a buffer area of 440 metres had been derived, based on the Environment Protection Authority's Recommended Buffer Distances for Industrial Residual Air Emissions, Environment Protection Authority Publication No. AQ 2/86. A design capacity of 8,500 equivalent population was used for the Yarrawonga plant taking into account potential odour sources from mechanical plant and aerobic pond (the latter requiring the larger, 440 metre, buffer). Mr Ryan said seven dwellings are within that buffer and the Authority's comments had not been sought in relation to a two lot subdivision at Lot 31 Havenstock Drive that is entirely within the buffer area. Mr Ryan indicated that the Authority had sought controls to identify the buffer area, including an Overlay in the Scheme, but that had not been implemented by the Council pending its preparation of its Scheme review. He noted that the draft Yarrawonga Strategy refers to the potential relocation of the treatment plant and that the Authority had set aside funds for 2007-08 for the upgrade or relocation of the plant. Mr Ryan stated that the treatment plant is an important community asset that should be protected from encroachment from sensitive uses.

15 Mr I Sandow submitted that the Applicants had purchased the review site with the aim of subdivision and found no mention of a buffer zone in their title search. A house was allowed to be built on Lot 29 with no mention of a buffer zone and Mr Sandow submitted that there had been a number of houses erected in the buffer area. He said that to the Applicants' knowledge none experienced problems with odours. Given that the treatment plant would probably need to be relocated, that others had been allowed to subdivide, and given a need for lots of the size proposed, Mr Sandow submitted that the proposal should be allowed. He also referred to the Applicant's intention to continue extensive plantings and the financial burden that would be imposed if the Application was rejected.

16 The basis for my consideration of these submissions is the policy framework and decision guidelines of the Scheme. I have referred to the most relevant clauses above, and note specifically that:

* Clause 15.04 addresses air quality. It seeks to ensure that development is not prejudiced and community amenity is not reduced by air emissions by ensuring, wherever possible, that there is a suitable separation between potentially amenity reducing and sensitive land uses and developments. Consideration should be given to Recommended Buffer Distances for Industrial Residual Air Emissions (EPA 1990) to determine the extent of separation.

* Clause 21.03-4 sets out a number of environmental strategies including:

Maintain appropriate buffer distances between sewerage/wastewater treatment and disposal facilities and other land uses in accordance with EPA guidelines.

17 I understand that the policy at Clause 21.03-4 was introduced quite recently but has not been accompanied by an Overlay that would draw attention to, and control development on, land that is within a nominated buffer area. The buffer area referred to by Mr Ryan is not, therefore, reflected in the Scheme. In Application for Review No.P406/2004 Boyer v Strathbogie SC Member Hewet said:

It is appropriate that I also make some observations about the review site's proximity to the WWMF[2] and the GVW's[3] approach to imposing and protecting a buffer around it.

The first point is that the GVW's "policy" of imposing a 560 metre buffer has no status under the planning scheme and I have given no weight to it. I was provided with a document which specifies appropriate buffers which ought to be imposed around GVW 's various waste water facilities and I note that the document also contains a number of recommendations concerning the application of the buffers. These recommendations refer to the importance of achieving planning scheme recognition for the policy, but the GVW has clearly not acted on those recommendations. It is strongly suggested that they do so.

18 I share his final comment in relation to the Yarrawonga treatment plant in so far as an Overlay would be one way to ensure that the presence of the facility is known and development controlled in an appropriate manner. In absence of such Overlay, or some other mechanism, one can appreciate that the Applicants were not aware of the issues that might arise from the proximity of the review site to the treatment plant when they purchased the land particularly with other subdivision having occurred.

19 However, the notion of a buffer area is nonetheless relevant to this Application for Review. While the provisions of Clause 52.10 of the Scheme were not relied upon by any party in this Application, and do not specifically refer to sewerage treatment plants, Clause 15.04 requires the Recommended Buffer Distances for Industrial Residual Air Emissions, Environment Protection Authority Publication No. AQ 2/86, Revised July 1990, to be considered. A copy was tendered at the Hearing by Mr Ryan. There is also a requirement to consider EPA guidelines through Clause 21.03-4, albeit that policy has no level of specificity.

20 The EPA publication AQ 2/86 sets out buffer distances for specific industries and, attached to Note 5, includes a table as a "guide when considering proposals for residential developments in the vicinity of existing sewerage treatment works". The buffer distances for the following elements are cited:

21 As noted, the buffer adopted by the Authority falls between these figures, based on a design capacity of 8,500 equivalent population. Much of the review site would not satisfy the lesser figure cited above of 350 metres.

22 It is, therefore, apparent that the subject land is very close to the treatment plant. It is not at the margin, or on the edge in this regard. Despite submissions that the treatment plant does not give rise to odour nuisance to existing residents, the outcome of this Application would be five residential lots close to the treatment plant. In my view, that outcome is not in accordance with the principle of orderly planning. That is, given the policies of the Scheme, and general planning principles relating to the separation of potentially incompatible uses, I am persuaded that the proposed subdivision should be rejected on this ground alone.

23 Several other matters require comment in this context.

24 First is the suggestion in the Authority's initial comments on the permit application that a Section 173 agreement be required on any permit to issue. I am not persuaded that this is an appropriate way forward as there should be clarity as to the nature of appropriate development within proximity to a sewerage treatment plant. In Boyer, Member Hewet made the some remarks about the use of Section 173 agreements which are apt:

With respect to GVW's reliance on agreements made under Section 173 of the Planning and Environment Act 1987 to achieve commitments from applicants for developments on land near the WWMF that they will not complain about or object to the WWMF, I regard this as a very poor substitute for the proper planning for the protection of the WWMF and for decision making about development proposals which may impact on them.

25 In the circumstances of the review site, and putting aside the question as to whether such an agreement can lawfully prevent complaints being made, I believe that a Section 173 agreement should not be used as a way to allow what would clearly be an inappropriate juxtaposition of land uses. Mr Hewet's comment again alludes to the need for the Scheme to properly address planning around facilities of this importance to the community, which I stress is essential.

26 Second is that I can appreciate the basis for the Applicants' reliance on subdivisions that have occurred as a precedent. As I understand it, the two lot subdivision at Lot 31 was not required to be referred to the Authority, reflecting an obvious problem where an appropriate development control tool is absent. Other approved subdivisions were said to pre-date the 2001 investigations undertaken by the Authority[4]. While probably not of great comfort to the Applicants, my consideration of this Application must be based on the circumstances and planning controls and policies that apply at the date of my decision and I am not persuaded that the approval of a two lot subdivision at Lot 31 provides a precedent in favour the current Application or to cause me to depart from the concerns I have raised above. Moreover, the personal circumstances or financial impact on the Applicants are not determinative considerations as a decision on an Application must be based on planning merits.

27 Third is that a draft Yarrawonga Strategy Plan has been released by the Council and public submissions have been invited and received. The Plan refers to the very rapid rate of growth of the town and the potential to relocate the sewerage treatment plant. Indeed, Mr Ryan noted that the design capacity of the plant has almost been reached and that funding has been set aside in relation to planning and developing a new, yet to determined, site for the plant. One might expect that in the not too distant future that the process by which the future of the treatment plant is to be decided may commence. Ultimately, therefore, there may be scope for the review site to be more intensively developed in the future.

28 Finally, several other matters raised in submissions require a brief comment:

* Density of development. Based on the current zoning, the proposal would achieve the maximum lot yield possible. The intensity of the proposed development is much greater than other residential lots in the immediate area and if the treatment plant had not been a consideration, then a lesser number of lots may have been more appropriate to better reflect the existing low density character of the area.

* Lot layout/roadway position. I have concern about the location of the common accessway to Lots 3, 4 and 5 that abuts the Benalla-Yarrawonga Road. A different configuration would be more suitable given that this is one of the main entries to the township.

* Waste treatment. Effluent envelopes are shown on the plans and there appears no debate that the land could be serviced.

* Drainage/flooding. Concerns were raised in submissions to the Council about the poor drainage conditions in the area. There is no Land Subject to Inundation Overlay or other relevant provision applying to the land although there were comments made at the Hearing about drainage conditions. On the information before me, I am not persuaded that the Application should be rejected for reasons relating to drainage or flooding, but conditions may have been required if a permit was to issue.

29 For the above reasons, I conclude that the decision made by the Responsible Authority should be affirmed.

[1] The Authority originally did not object subject to conditions but later changed position.

[2] Nagambie Waste Water Management Facility

[4] Urban & Regional Planning (August 2001) Review of Buffer Distances Surrounding Wastewater Treatment Facilities.