1. In cl 73.04-15 in the planning scheme the proposed use of Vehicle store is nested under Store, which in turn is nested under Warehouse which appears in the extract in Table 1 above as a low sensitivity use.
2. Melbourne Water put to Dr Shepherd in cross examination that the question of odour impact required greater consideration including of the Separation Distance Guideline ('SD Guideline')[23] and the General Environmental Duty under the Environment Protection Act 2017 (Vic). It also suggested that the three levels of sensitivity in Table 4 in the odour guidance (low, medium and high) should not necessarily be equated with a binary sensitive/not sensitive view when considering the SD guidelines or indeed sensitivity in a planning sense. Melbourne Water's put the view that all the uses listed in Table 4 could be 'sensitive', with differing levels of sensitivity, some of them being low.
3. Dr Shepherd's evidence is that based on his experience the low category generally relates to a use not being sensitive, the high sensitivity likely is a sensitive use and the medium category may be a sensitive use depending on the facts and circumstances. He accepted there is no specific guidance from the Environment Protection Authority or in the planning scheme that articulates this approach.
4. Dr Shepherd's view is that as the proposal is ascribed low sensitivity in the odour guidance, the SD Guideline is not relevant as that guideline relates to sensitive uses. He accepted that the proposed use in this case is the 'agent of change' and needs to consider odour, but that given it is a low sensitivity use, the impact of odour is assessed as low risk. He agreed under questioning there is nothing to suggest that Melbourne Water is not currently meeting its General Environment Duty at the ETP now.
5. Melbourne Water took me to a number of cases including Anderson v PWM (Lyndhurst) Pty Ltd [2024] VSC 417 ('Anderson') and Monsbent Pty Ltd v Environment Protection Authority [2024] VCAT 302 ('Monsbent') which they submitted would assist with my deliberations.

1. That odour from the ETP affects the site at times is not in my view controversial. The question then remains as to whether the proposal is a 'sensitive use'. Answering this question goes to the heart of the objectives to be met and the decision guidelines to be considered in ESO3.
2. Overall, I find that the proposal is not a sensitive use or odour-sensitive use in the terms of ESO3, and the approach to risk assessment pursued by Dr Shepherd for the applicant is appropriate.
3. The ETP is a state significant piece of infrastructure, its relatively unconstrained operation has significant public benefit and the ESO3 seeks to protect this benefit.
4. Sensitive use is not defined in the planning scheme[24] although I note in clauses 13.05-1S (Noise management) and 13.06-1S (Air quality management) there is some guidance in the strategies:

...sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital)...

1. Unsurprisingly these uses appear to coincide with high sensitivity uses in table 1 except for perhaps the education use which is listed as medium sensitivity.
2. I accept that there is no direct articulation between sensitive uses in the ESO3 and the categories in table 1. The odour guidance is not referenced in the planning scheme although it lists among its purposes and intended audiences that it is to assist decision makers and planners among others to assess risk from offensive odours.
3. With this in mind, it is illogical to take the view that all the uses in table 1 in terms of the planning scheme and ESO3 are 'sensitive uses'. If that logic is followed to its end, it may be that all land uses in the planning scheme are sensitive; this would be a problematic approach to decision making around sensitive land uses indeed. It is clearly not the purpose of the ESO3 to prevent all land uses and there is nothing in the planning scheme that suggests such an approach is called for.
4. Planning by its very nature seeks to separate those land uses with high amenity expectations from those with the potential to create significant offsite amenity impacts such as odour. In this matter part of the exercise of discretion is to consider whether the proposed use is sensitive and the decision that flows from that conclusion.
5. In conclusion I consider the proposal is responsive to the objectives in ESO3 in that:
   • The use and development is compatible with the ETP.
   • The proposed use is not odour-sensitive as those attending site are not attending with high amenity expectations for 'quiet enjoyment' in my view and thus even if odour is present, it will have minimal impact.
   • The use may bring a relatively large number of people to site at peak times for truck pick up or drop off but not for an extended time.
6. I have reviewed the cases identified for me by Melbourne Water, including Anderson and Monsbent. In both cases the factual situation is very different to the matter before me.
7. Anderson relates to a major operating landfill with subsurface landfill gas migration. McDonald J found amongst other things that the landfill operator breached its General Environmental Duty in allowing the gas migration.[25] McDonald J addressed some of the well-known principles relating to 'amenity' including its general definition of 'the quality of being pleasant or agreeable' and allowing quiet enjoyment of a premises.[26] Given my reasoning above, I do not think the case is relevant on the facts and circumstances before me. It is not suggested that odour emissions from the ETP are unlawful, and given the non-sensitive nature of the proposed use, considering the 'quiet enjoyment of the premises' is not relevant for the transient truck drivers and staff who will be present.
8. Monsbent was a decision regarding an amendment to an operating license for a particleboard factory. The range of contaminants released from the plant and the consideration of nearby 'sensitive receptors' I do not think it particularly assists me in the consideration of this matter.

1. The proposal requires a significant parking dispensation under cl 56 given the size of the site. This was not a contentious issue and does not weigh against the issuing of a planning permit.
2. By its nature the site will generate significant levels of heavy vehicle traffic. This will enter the local road network via Perry Road South and Perry Road and to a lesser extent via Worsley Road to the south. Council's traffic engineers expressed concerned about traffic arrangements.
3. Ms Dunstan in her evidence concluded that traffic circulation on site and entering the road network can be managed to an acceptable level with minor works to the facility entrance and the Bangholme Road/Worsley Road roundabout.
4. I understand that council is considering the signalisation of the Perry Road and Perry Road South intersection. Ms Dunstan's view was that the intersection will work acceptably without this signalisation and is not dependent on it.
5. Of note she indicated that the proposed AM peak for facility traffic is between 5.30am and 6.30am and doesn't coincide with the AM peak on the existing road network as shown in figure 7.[27]

1. Traffic and parking in my view are not impediments to the issue of a planning permit and could be managed via conditions.

1. As shown in figure 7, there is significant vehicle movement likely in the night time and early morning period of 4.00am - 7.00am, both light vehicles with drivers attending the site and heavy vehicles leaving to conduct the day's freight tasks. There are a smaller number of movements right through the night time period.
2. Evidence on lighting was provided by Mr Hayman who noted that the dwellings at the eastern end of Bangholme Road (numbers 207 and 213) may experience headlights of vehicles pointing in their direction as the vehicles depart the facility and turn left on to Bangholme Road. His view is no light spill 'above requirements' is expected at dwelling facades.
3. Evidence on noise was given by Mr Lindsey who made a number of recommendations for noise management on site. For traffic entering and leaving the site he concluded that the contribution from the facility was substantially lower than the ambient noise from the existing road network, such as Eastlink, which is particularly relevant in the night time period from 10.00pm to 6.00am. He noted that the spectral frequency of trucks, for example when they accelerate to leave the facility, may result in more audibility at nearby residences than the LAeq (average) noise predictions may suggest.
4. There is no doubt that the amenity outcomes in terms of light and night time noise will be poorer for the residents on the eastern end of Bangholme Road if the facility is constructed. Increased light from vehicles and more local intense noise from vehicles entering and leaving the facility, different to the existing 'hum' of background traffic, will adversely affect the residences compared to the existing situation.
5. In my view if the broader policy balance was in favour of the application, then these amenity impacts of themselves would not be significant enough to prevent the issuing of a permit and further mitigation might be considered. As I conclude against the proposal on the broader policy, this exercise is not necessary.

1. A large, illuminated sign is proposed at the facility entry which requires planning permission. I understand that trucks using the facility will be pre-booked and not 'drop-ins'. Visitors to the facility will be consciously navigating to it and should not require such a large sign for way-finding.
2. The issue of signage is not determinative of the application more broadly but if the facility was approved, it is difficult to see how a large illuminated sign is consistent with the green wedge values to be protected and it should not in my view receive planning approval at the size proposed.

1. An assessment of native vegetation on the site was undertaken by Practical Ecology and Mr Hill gave evidence in the hearing, essentially in the nature of a peer review of the earlier report.
2. Mr Hill concluded that the proposal will not impact any significant Commonwealth or state listed flora species or ecological communities. His view is that the loss of native vegetation including trees can be offset and there is scope in the landscaping to increase the amount of native vegetation. A large dead redgum on the site should be retained and relocated as a habitat element in the proposal.
3. Overall, he concluded that native vegetation was not a reason for refusing the planning permit application when assessed against relevant policy in the planning scheme. I agree.

1. In coming to a decision on the application and the relevant planning permit triggers, I am required to balance competing policy objectives in the interests of sustainable development and net community benefit in accordance with cl 71.02-3 to determine whether the application will result in an acceptable planning outcome.
2. For this matter I conclude that the protection of the green wedge from a significant new urban use outweighs the need for the application to proceed on this site. The proposal would essentially extend the industrial area into the green wedge and I am not satisfied that this is an acceptable outcome when all the relevant policy is brought to bear.
3. This does not mean that I conclude that the facility is not needed. It appears to me on the evidence that there is a need for such a facility, but on balance I do not consider this need outweighs green wedge protection on this site.
4. I am also concerned about the development of such a facility on a floodplain. The impact on flood storage appears to be minimal and in this sense the use and development is an acceptable outcome. However, I am not satisfied that the risk of parking valuable vehicles in a known flood area has been addressed to an acceptable level. Relying on management and evacuation measures to ensure the removal of such vehicles introduces a level of risk to the safety of users and property and those who have to 'enforce' the management measures.
5. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

1. The proposal is inconsistent with Planning Policy Clause 14.01-1S (protection of agricultural land) and Clause 14.01-1R (protection of agricultural land- Metropolitan Melbourne) as the proposal will result in permanent loss of agricultural land within Metropolitan Melbourne's green wedge.
2. The proposal is inconsistent with Clause 13.05-1S (noise abatement), Clause 13.07-1S (land use compatibility) and Clause 21.04 (land use) as it has not been designed to avoid adverse off-site amenity impacts to existing neighbouring sensitive land uses, particularly in relation to noise from trucks entering and exiting the site and the impact of increased traffic volumes on the safety of the surrounding road network.
3. The proposal does not meet the objective of Clause 22.02 (Green Wedge) and the incorporated Green Wedge Management Plan, as it does not meet the vision of the Greater Dandenong Green Wedge, does not respect landscape values, protect infrastructure assets and private property from flooding or encourage sustainable land use practices.
4. The proposal fails to meet the objectives of Clause 22.11 (Advertising Signs) as the proposed signage is not designed, positioned and displayed in an appropriate and attractive manner having regard to the site context.
5. The proposal fails to meet the purpose and decision guidelines of Clause 35.04 (Green Wedge Zone) of the Greater Dandenong Planning Scheme.
6. The proposal fails to meet the objectives of Schedule 3 to the Environmental Significance Overlay as the proposed use will compromise the ongoing operations of the Eastern Treatment Plant.
7. The proposal fails to meet the purpose and decision guidelines of Clause 52.05 (Signs) of the Greater Dandenong Planning Scheme as the proposed signs are incompatible with the amenity and visual appearance of the area.
8. The proposal fails to meet the purpose and decision guidelines of Clause 52.17 (Native vegetation) as the proposal has not been designed to avoid removal of vegetation.
9. The proposal fails to meet the decision guidelines of Clause 65 of the Greater Dandenong Planning Scheme.

APPENDIX B - MELBOURNE WATER'S STATEMENT OF GROUNDS[28]

1. The proposal is inconsistent with the objectives of Clause 13.03-1S (Floodplain Management) and Clause 21.06-3 of the Scheme and the Victorian Flood Management Strategy, as it does not assist in the protection of life and property from flood hazard.
2. The proposal is inconsistent with the objective of Clause 13.06-1S (Air Quality Management) of the Scheme, as it does not assist the protection and improvement of air quality by ensuring there is suitable separation between the proposed use and the Eastern Treatment Plant.
3. The proposal is inconsistent with the objectives and decision guidelines of Clause 22.02 (Green Wedge) of the Scheme, as it is incompatible with the operations of the Eastern Treatment Plant and does not recognise the constraints caused by flooding.
4. The proposal is inconsistent with the purpose and decision guidelines set out in Clause 42.01 (Environmental Significance Overlay - Schedule 3) of the Scheme, as it will compromise the ongoing operations of the Eastern Treatment Plant.
5. The proposal is inconsistent with the objectives of clause 13.07 and the separation distance of clause 53.10, which seek to separate residential uses from incompatible commercial and industrial urban land use.
6. In relation to the purpose and decisions guidelines of clause 44 The proposal is inconsistent with the purpose, objectives and decision guidelines of Clause 44.04 (Land Subject to Inundation Overlay) of the Scheme, as it does not minimise flood damage, does not respond to the flood hazard and does not minimise the potential flood risk to life, health and safety.[29]
7. The proposal is inconsistent with the objectives of Settlement and Green Wedge planning policy detailed in clause 11.01-1S, 11.01-1R, 14.01-1S, 14.01-2S, 12, 15, 21.03-3, 21.04-3, 21.04-4, 22.02, and 51.02, Plan Melbourne 2017-2050 and the Greater Dandenong Green Wedge Management Plan, where the clauses form part of the Municipal Planning Strategy and Planning Policy Framework, and a purpose of, and where appropriate a decision guideline of, clause 44.04 (Land Subject to Inundation) and clause 42.03 (Environmental Significance Overlay).
8. The proposal fails to properly address safe evacuation of all stored vehicles on notification of a predicted flood event, within a short notification period via Bangholme Road and the intersection with Worsley Road and then further north the intersection with Perry Road.
9. The proposal is contrary to the objectives of planning in Victoria.
10. The proposal is inconsistent with the decision guidelines of Clause 65.01 (Approval of an application or plan) of the Scheme with reference to the effect the environment may have on the development, the flood hazard associated with the location and the management of the land to minimise such hazard, and the orderly planning of the area.
11. The proposal does not suitably respond to the matters within Section 60 of the Planning and Environment Act 1987, with reference to the applicable components of the planning scheme, the effects the development may have on the environment and the effects the environment may have on the development.
12. The proposal is not sustainable development that results in a net community benefit.
13. The proposal is inconsistent with the 'Guidelines for Development in Flood Affected Areas' (DELWP, 2019), as it will likely intensify the impact of flooding to an extent that is unacceptable.
14. The proposal is inconsistent with the purposes of, and would interfere with the rights of Melbourne Water over the Subject Land under drainage easement E-1 and the associated Instrument 2578853 on TP 82649S.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] I am using this nomenclature (Perry Road South) for the short section of road from Perry Road to the roundabout to distinguish it from the main part of Perry Road which is elevated along the northern boundary of the site.

[3] Part easement 2578853. Now held for the benefit of Melbourne Water.

[4] 24 medium sized bays, 46 B-double bays and 236 semi-trailer bays.

[5] As substituted by the Tribunal by order.

[6] Prepared by Hansen Partnership from Location 4, approximately the midpoint of the western boundary from the Dandenong Creek Trail looking southeast.

[7] Noting that at the time of writing the Greater Dandenong Planning Scheme has not transitioned into the MPS/PPF format.

[8] Noting the site is not within the strategic industrial map in cl 21.04-3

[9] The applicant provided an agricultural assessment report of existing economic value generated on the site from RMCG dated September 2023 as part of the application. The report noted that the agistment being undertaken is the most valuable land use for agriculture and has an income potential of approximately $39,000.

[10] Which is in Kingston City Council but in the green wedge.

[11] Gormacile Pty Ltd v Kingston CC [2013] VCAT 1825. I was taken to other examples, but 494 Boundary Road is the nearest in scale to that proposed here.

[12] Noting that these uses may have established after the truck park.

[13] Retention and treatment of stormwater drainage from the site was also considered in the application including a series of ponds on the western boundary of the proposal. This particular aspect of the proposal was not overly contentious in my view.

[15] The Dandenong Valley Authority State Water Sport Centre Hydraulic and Sediment Study (1982).

[16] Upper image is 653 m3/s flow (figure 14 Afflux memo) and lower image is 500 m3/s flow (figure 15 Afflux memo). The site is within the heavy red line).

[17] Afflux also modelled another scenario with floodplain filling east of Eastlink. I understand there is some question as to the status of this filling and it has limited effect on the subject site according to Afflux.

[18] Both the experts agreed that there is a need for a 'major flood modelling review of the whole system by Melbourne Water/Council...'

[19] The guidelines are not specifically referenced in the planning scheme but Melbourne Water submitted they are relevant and that as a result the application should have included a flood impact assessment and flood risk management plan. A useful discussion of the guidelines and their application in included in 51 Hardiman Pty Ltd v Melbourne CC & Ors [2025] VCAT 222 commencing at [140].

[20] And from the rubbish truck parking depot to the north of the site across Perry Road.

[21] An 'odour unit' is the measure for intensity of odour; with 1 OU being the detection threshold as assessed by a trained odour panel.

[22] Publication 1883, EPA Victoria, June 2022.

[23] Publication 1949, EPA Victoria August 2024.

[24] Sensitive land use is defined in the odour guidance as 'Any land use or zone that requires a focus on protecting human health and wellbeing, local amenity and aesthetic enjoyment'.

[27] Ms Dunstan surveyed the arrivals and departures at the Melbourne Truck Park on Boundary Road in Dingley.

[29] There appears to be an error in the lead in to this ground but I have reproduced it exactly as provided and its intent is clear.