Sawnrite Pty Ltd v Yarra Ranges SC [2009] VCAT 2715

1. The decision of the Responsible Authority is set aside.
2. In permit application YR-2007/1774 a permit is granted and directed to be issued for the land at 30 Heritage Lane Healesville [in accordance with the endorsed plans and] on the conditions set out in Appendix A. The permit allows:
   • Use and development of the land for a sawmill, including necessary earthworks and a reduction in car parking spaces.

Mr Paul Connor of counsel instructed by Reto Hoffman, solicitor of Hoeys Lawyers

• Simon Martyn, a town planner from Fulcrum Town Planners;
• Simon Merrigan, landscape and drainage consultant from Millar Merrigan
• John Upton, an acoustic consultant from Shelburn Acoustics; and
• Mr Wayne Schild, director of Sawnrite.

Ms Manjusha Pitt (6 & 17 August) and Ms Jacqui Hanson (13 August), town planners from Yarra Ranges Shire Council.

Mr Tim Radisich, a town planner from Associated Town Planning Consultants. He called Mr Hill to give evidence.

Mr Austin on 13 August; Mr Radisich reading a written submission on their behalf on 17 August.

Use of the land for a sawmill with development including the construction of a building to house a timber milling unit, wood chipper and other machinery work areas. Formalised wood storage areas, plant and equipment storage and loading area are to be provided along with car parking.

Section 77 Planning and Environment Act 1987.

Zone and Overlays of the Yarra Ranges Planning Scheme

Significant Landscape Overlay - Clause 42.03 (Schedule 4).

Other particular provisions of the Yarra Ranges Planning Scheme

Clause 53.01 Upper Yarra Valley and Dandenong Ranges Region Provisions.

Permit triggers under the Yarra Ranges Planning Scheme

Clause 36.01-1: Use not carried out by or on behalf of a public land manager. Use not compliant with the Table to Clause 36.01-6.

Clause 36.01-2: Construct a building and carry out works for a section 2 use in Clause 36.01-1.

Clause 52.06-1: Reduction in the number of specified car parking spaces.

Clause 53..01-1: Construct a building and carry out works.

Policy and other general provisions of the Yarra Ranges Planning Scheme

Kaso v Coburg City Council & Anor 9AATR p119; Van Egmond v City of Knox, Bassett & Ors (1985) 3 PABR 249; Knox City Council v Tulcany Pty Ltd & Ors [2004] VSC 375; Osborne v La Trobe CC [2003] VCAT 1785; Smith v Shire of Flinders 1 PABR 183; Hodgetts v Shire of Metcalf 26 APAD 99; Bowman v Shire of Woorayl 12 VPAD 116; and First Cashmore Pty Ltd v Macedon Ranges SC 19VPR 245.

Hearing of this proceeding was undertaken in part on the site on the morning of 13 August 2009. An inspection of the site and surrounds was undertaken there after in which time Mr Schild demonstrated various pieces of machinery, including the portable log trimmer, chainsaws, and an excavator. Mr Hill operated a wood chipper on his property using timber off cuts selected from Mr Schild's property.

1. Mr Schild operates a business known as Sawnrite. It is a business that focuses on wood salvaging operations rather than processing trees from conventional forestry harvesting. The operations uses a mobile timber trimmer to process timber at the salvage site. Mr Schild seeks to establish the business on a permanent site in Heritage Lane, Healesville. He will transport the wood for milling to this site rather than have to transport the mill to the source of the wood.
2. The Yarra Ranges Shire Council has refused to grant a planning permit for Mr Schild to allow this use of the subject land. It has done so on a number of grounds,[1] which can be summarised as follows:
   • Insufficient information being provided about the nature of the use and development;
   • Concerns over potential amenity and environmental impacts; and
   • The appropriateness of the use of the land given its Public Use zoning.
3. Neighbours to the site have concerns, principally about the impact to their amenity. They support the Council's refusal to grant a permit.
4. I have considered the various permit application materials provided by the Council, the submissions of the parties and the evidence lead on behalf of Mr Schild.[2]
5. For the record, it is apparent from reviewing the permit application materials that Mr Schild's permit application did seem somewhat short on detail and had an air of hesitancy in providing same. The characterisation of the use of the site is a case in point. Mr Schild seemed reluctant to categorise his operations as a sawmill preferring to use the term 'material storage and recycling'. How much his hesitancy to address this vagueness and other clarifications sought by the Council influenced perceptions about the application is not a matter of relevance in my decision. I would observe however that it most likely did not help the process of assessment. What is relevant is that ultimately the Council elected to refuse this application on the ground that there was insufficient information on which to base a proper decision.
6. With the benefit of three days of hearing, one of which was on site with Mr Schild demonstrating various equipment, I am satisfied that sufficient evidence, submissions and clarifications about this permit application have now been adduced to make a decision.
7. My decision is that a permit should be granted, subject to conditions. My reasons for arriving at this decision deal with the determinative matters of:
   • The characterisation of the use and development of the land;
   • Potential amenity impacts;
   • Landscape impacts; and
   • Flood and water quality impacts.
8. A range of other matters have also been canvassed by the objectors particularly by Mr Radisich on behalf of Mr and Mrs Hill, much of which is in relation to Mr Schild's use of the site prior to his permit application and this hearing. It is suggest that his alleged behaviour shows a disrespect for planning scheme requirements. It is submitted that I should have no confidence that Mr Schild will comply with planning permit conditions or otherwise care about the impacts he will have on peoples' amenity. I will first deal with this issue before turning to the determinative matters set out earlier.

1. This proceeding is about the assessment of the merits of operating a particular kind of sawmill on this site. The permit, so granted, runs with the land not Mr Schild. It will contain conditions that Mr Schild will be required to adhere to. If they are not, others can seek to ensure that they are.
2. How Mr Schild has, or is alleged to have behaved in the past is of no bearing in this decision. This is not an enforcement hearing. Whether further action is to be taken up about previous activities as alleged by the Hills and others, is a matter for the Council and others and is not relevant to my decision. In granting this permit however there should be no inference that this Tribunal condones any previous unlawful activity on the site if indeed that was found to be the case.
3. The approach I have adopted here is consistent with that expounded by (the then) Mr Morris when Chairman of the Planning Appeals Board in Van Egmond v City of Knox, Bassett & Ors.[3] In that matter the Board states that:

The Board proposes to consider the application on its merits and not place the Applicant at any disadvantage because he has commenced the use illegally.[4]

1. This view has been subsequently endorsed by Osborne J in Knox City Council v Tulcany Pty Ltd & Ors agreeing with that Tribunal that correct principle is that:

...the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained.[5]

1. Mr Radisich relies on Kaso[6] and Osborne v La Trobe CC[7] proceedings to argue the converse to the above.[8]
2. In this respect I note firstly that I am not bound by the decisions of other tribunals or for that matter, by the Board in Van Egmond. However due regard is to be paid to the decisions and commentary of the Supreme Court, the more so when such commentary comes after the decisions cited by Mr Radisich.
3. Further, in the Kaso matter the Board relied on a number of previous determinations in arriving at its decision to consider the behaviour of the permit applicant.[9] In all of these latter cases, there were particular circumstances that were said to give weight to the consideration of past behaviour or the capability of the applicant to comply with permit conditions. In the Hodgetts matter there was a particularly acute history of not only ignoring planning scheme requirements, the permit applicant had an almost pathological history of ignoring court orders to comply. In Bowman, the applicant disregarded directions to cease activity for which no permit had been issued.
4. Over the three days of hearings, nothing was presented to me to indicate Mr Schild's ignored any direction or order from the Council. Mr Schild's evidence is that once it was bought to his attention that a permit was required for the sawmill use, he set about obtaining one. He indicates that prior to this, it was his belief that the use did not require a planning permit, but became aware of this need when he sought a permit for a proposed building.
5. Material is on the Tribunal file to indicate that Mr Schild's received professional planning advice that his operation could be defined as materials storage and recycling, consistent with an apparent past use of the site. He was advised that he may have the benefit of existing rights use. It is perhaps not surprising then that Mr Schild did not pursue a planning permit for the use in light of such advice.
6. In Smith, the applicant's capacity to comply with conditions was considered relevant 'in the circumstances' due to the potential for off-site amenity impact from poor management.[10]
7. While some have argued that the circumstances of this application have certain parallels Mr Schild's alleged behaviour, I note the view of the Tribunal, chaired by Senior Member Byard, in First Cashmore Pty Ltd v Macedon Ranges SC :

Most cases relied on ... in this respect date back to the days of the Town and Country Planning Act, or perhaps in some cases, its immediate aftermath. The scope for amending or cancelling permits under that Act was much more rigid and much more limited than the basis available under the current Planning and Environment Act. That may have made predecessor tribunals more cautious. We are satisfied that the approach we have taken, under the current PE Act, is the correct one. We note that s.87(1)(b) provides the opportunity for cancelling a permit, if necessary, on the ground of substantial failure to comply with the conditions of a permit.[11]

1. I am of the same view. Those cases relied on by Mr Radisich do not necessarily hold true today, as evidenced by the view of more recent Tribunals, the views expressed in Van Egmond by Chairman Morris and subsequently endorsed by His Honour Osborne J.
2. Mr Morris also observed in Van Egmond[12] that the granting of a permit for formerly unlawful use of a site does not prevent prosecution for that previous activity. The permit, if granted, acts prospectively and not retrospectively. Neither should the granting of a permit for a formerly illegal use be seen to be condoning such action, advocating that breaches of the law be prosecuted to avoid undermining of the town planning system.
3. In conclusion, Mr Schild's previous behaviour does not prevent me from granting a permit with appropriate conditions that should be fully expected to be complied with or otherwise be subject to appropriate enforcement actions. Neither does the granting of a permit for this site prevent the Responsible Authority from taking actions against Mr Schild for such activity if it so desires.

1. As I have already noted I accept that there seemed to be a certain degree uncertainty in Mr Schild's characterising the intended use in his permit application. Various correspondence indicates that the site's intended use to be for various forms of materials storage and materials recycling. It would seem that Mr Schild was keen to avoid the stigma of 'sawmill' being associated with his permit application.[13]
2. In this proceeding however, Mr Connor, the Council and Mr Radisich are all in agreement, quite rightly in my view, that the permit application is for a sawmill. Mr Connor is also at pains to point out that this is not the same sort of sawmill operation that one may associate with 'traditional' milling of forest harvested logs. He submits that Mr Schild's operation is about the recovery and milling of salvaged logs and other wood resources for specialist purposes, using logs and other wood that would otherwise be considered a waste. Examples cited by Mr Schild in evidence include the removal of trees during land development, storm damaged trees and even trees burnt during bushfires. It is not about milling large volumes of commercial forestry logs as would be attributed to 'traditional' timber milling.
3. I accept such submissions. It is evident from the scale of machinery proposed to be used on the site that this will not be a high volume operation. In addition to cutting of raw timber, Mr Schild's operation will utilise band saws and other cabinetry tools to produce timber products of finer specifications than would otherwise occur in large scale, high volume operations.
4. Perhaps Mr Schild's operation can be best described, if there is such a beast, as a 'boutique' sawmill operation.

1. I will address many of the amenity concerns raised by objectors later in these reasons. One factor in these concerns however appears to be that a permit for a sawmill operation could see Mr Schild expand beyond the bounds of that described above and so generate more noise and dust than otherwise might be reasonable to anticipate.
2. How then can I be satisfied that the permitted use will not expand beyond that anticipated in the granting of a permit.
3. It would be difficult for Mr Schild to place a volumetric limit on his operation, given the reactive nature of the business to demand. It would be difficult for the Council or others to monitor such compliance.
4. What will control this use will be the size of the shed in which the log trimming and other operations are to take place and the number of staff. The hours of permitted operation will also assist in controlling the potential for amenity impacts. These are all permit conditions that are readily enforceable. Any variations to them would require the consent of the Responsible authority and be assessed on the merits.
5. The consideration of the merits of this application is therefore focussed on the use of the site as a sawmill at the scale that is indicated under Mr Schild's application and set out above.
6. Mr Radisish expresses concern that Mr Schild's past activities on the site have included storing other waste materials on the site and activities such as wood pulping. Mr Schild concedes that in his past use of the site, he has allowed others to use it for storage of materials unrelated to his sawmill operation. He has set about removing such material in response to orders from the Council.
7. I refer to my earlier reasons in response to issues of past behaviour. It is clear that the permission being sought for this site, and being so granted, is for the operation of a sawmill. Collecting, storing and moving wood products or wastes around the site would be ancillary to this use. So will movement of vehicles and operation of various pieces of machinery as well as maintenance of such machinery.
8. Any other use, other than that ancillary to the sawmill would require a separate permit and be subject to an assessment of the merits of such a use.

1. The Hills' and the Council's grounds refer to the fact that the subject site is currently zoned for public use. It is asserted that a sawmill is a use that is incompatible with the purposes of this zone.
2. While raised by the Council, it was not one hotly pursued in hearing. The Council notes that the land is no longer in public ownership. It is submitted that in being surplus to any public ownership or use, the underlying zoning of the site, when other factors are taken into account, would be Green Wedge Zone. The Council has adopted the approach therefore of considering the application in terms of its appropriateness under that zone and not a public use zone.
3. Mr Radisich contends that the land was meant to form a buffer to the adjoining wastewater treatment plant. He submits that industrial use of the land would undermine this purpose.
4. No evidence or materials has been presented to support the contention that the land is required to form a buffer to the adjoining wastewater treatment plant. In fact a number of factors weigh against such a contention. One is that the public authority sold the land to private interests in or about 1996. The public authority obviously has no further interest in maintaining or using this land. Another fact is that the Council has variously granted permits for some form of industrial use of the land without apparent objection of the operator of the adjoining wastewater treatment plant. Thirdly, no objection is raised by the current operator of the wastewater plant to the sawmill use.
5. In any event, the Environment Protection Authority guidelines on buffers for industrial emissions, which I will address in more detail later, highlight that buffer zones are not intended to be vacant land and may be used for non-sensitive uses.
6. Accordingly, I do not accept the views put on behalf of Mr and Mrs Hill.
7. It is apparent that the zoning of this land is a hangover from previous use that the planning authority has yet to redress. I accept what has been put by the Council and supported by Mr Connor that:
   • The current zoning does not preclude the use of the site for use other than by a public authority;
   • If valid, the concept of an underlying zoning would, on consideration of all relevant factors point to a Green Wedge Zoning; and
   • Under either the current Public Use zoning or the possible underlying Green Wedge Zone, a sawmill is a section 2 use, requiring a permit as will the development works required to support such a use.
8. In conclusion, there is no preclusion to a sawmill being considered on this site due its Public Use zoning. Whether a sawmill is an acceptable use requires consideration of other relevant local planning scheme provisions, and state and local policy requirements. Principally these considerations are about the impact on surrounding amenity, landscape, noise, air and water quality impacts.

What about buffer distances under Clause 52.10 and AQ2/86 Guidelines?

1. The Hills and others raise the fact that the sawmill will be located within the buffer distance set out under Clause 52.10 of the Planning Scheme. Mr Radisich highlights three buffer distances he believes are relevant: 500m for a sawmill; 1,500m for woodchip products (or wood fibre) and 100m for joinery. He notes that none of these distances can be varied unlike others in the table to Clause 52.10, which can be varied depending on the 'processes to be used and the materials to be processed or stored'.
2. Mr Radisich also draws on the EPA Guidelines AQ2/86 Recommended Buffer Distances for Industrial Air Emissions[14] to further support the view that the location is inappropriate because it fails to meet the buffer distances under this guideline.

1. His Honour Osborne J was called upon to consider the operation of Clause 52.10 in Love v Stuart Castle & Anor.[15] The following are relevant points from his decision on that matter:
   • 'Clause 52.10 is ancillary to the zone controls provided with this frame work'[16] of section1, 2 or 3 uses.
   • Clause 52.10 of itself does not impose land use controls.[17]
   • Clause 52.10 provides 'definitions capable of use [by] controls located elsewhere in the planning scheme'.[18]
2. Mr Connor quite correctly points out that the current Public Use Zone makes no reference to Clause 52.10 in defining what is or isn't permissible under the zone. If I were to have regard to the 'underlying' or potentially alternative zoning of Green Wedge, it too has no reliance on Clause 52.10. This is despite rural industry, a use that includes sawmills being a section 2 use under that zone.[19]
3. Quite simply Clause 52.10 is not a prohibitive control on this site for use as a sawmill. It is not called into play by the zone or by any other planning control applicable to this site. That is not to say that potential amenity impacts are not relevant. Such impacts are to be considered under other provisions and policies of the Planning Scheme and by the Planning and Environment Act 1987.[20] These are matters which are determinative in this application which I address later in these reasons.

1. The AQ2/86 guidelines are relevant by way of Clause 17 of the State Environmental Protection Policy (Air Quality Management)[21] and State Planning Policy under Clause 15.04 The buffer distances specified in AQ2/86 are about managing air emissions such as dust and odours and do not take account of noise, vibrations or other hazards. The guidelines highlight that the purpose of the buffer distances is essentially to deal with potential upset conditions and are not to be relied upon for day to day management of emission sources. Best practice control of emission sources is encouraged.
2. The buffer distance under AQ2/86 for sawmills is 300m. The guidelines provide for variations to all buffer distances based on a series of criteria which amongst other matters considers the means of emission source control, the plant size and the topographical and meteorological conditions which affect dispersion of emissions. Unfortunately, in respect to plant size no indication as to the nature of sawmills on which the buffer distance of 300m was established is provided.
3. Be that as it may, I have already set out that I accept that Mr Schild's proposal is for a small scale operation. In this respect his plant would be distinguishable from many larger scale, high volume sawmill operations. Common sense would lead to a conclusion that a smaller scale mill will reduce the potential for adverse impacts by the smaller level scale of emission sources.
4. The EPA, in its response to the referral from the Responsible Authority does not object to the proposal being closer to residential land uses than the 300m buffer set out under AQ2/86. It does so subject to conditions being imposed on the permit and the provision of satisfactory evidence about noise levels being acceptable and not impinging on the amenity of the residences.
5. I am of the same view as the EPA. The buffer distance of 300m is in relation to air emissions and not noise. The emissions from this site that would primarily be of concern are sawdust, dust and perhaps occasional odour. Mr Schild proposes to undertake all milling and wood chipping within a shed, with dust extraction and hopper storage. Such technology is well proven and used extensively in industry. It is low risk technology.
6. Activities in the yard around the shed, such a vehicle movements and storage of raw or milled product will be of limited risk due to the small scale of operations, as I have set out earlier.
7. Mr Schild does not resist permit conditions that will prevent burning of waste wood and other materials. It is his evidence that with the operation of the dust collection hopper and wood chipper, burning will be unnecessary as this material can be recycled for mulch or other uses.
8. Thus with respect to the buffer distances under AQ2/86, I consider that there is scope to accept a lesser buffer distance.

1. Mr Radisich infers that the use of a wood chipper may require the greater 1,500m buffer distance applicable to wood chipping processes. I find this is not the case. Principally the site use is characterised as a sawmill, as set out earlier in these reasons. The use of a wood chipper is ancillary to that use and does not trigger the need for a greater buffer distance, a distance based on the wood chipping process being the primary activity. .

1. All parties in their support or objection to this sawmill rely upon various State and Local planning policies. State policies such those under Clause 15, call for consideration of potential impact to air and water quality and amenity.[22] There is also policy about supporting industry and economic development.
2. Local policy for Timber Industry at Clause 22.02 of the Planning Scheme quite usefully draws together the various strands of policy into one consolidated form for the Yarra Ranges shire. The policy basis set out the importance of the timber industry to the shire, particularly encouraging value adding timber processing industry. However it is also recognised that the 'continuation and future development of the timber industry ... must ensure that adverse impacts on residents and the environment are minimised'.[23]
3. Amongst other objectives, the policy seeks to provide guidance on the selection of suitable locations for sawmills and timber processing. Specific policy has been prepared in this respect. In considering this site, some requirements are supportive or can otherwise be met, such as access and provision of reticulated services. Other requirements are in apparent conflict, such as sawmill not being located in a Significant Landscape Overlay areas. In all cases, the application of and adherence to policy is discretionary, being subject to a consideration of the merits of the proposal against the overall objectives of the policy.
4. In considering whether this sawmill site meets policy objectives, I find that I am in agreement with much of Mr Martyn's evidence on this point. Specifically I accept that:
   • This proposal is not for a major sawmill and therefore need not be located in preferred sawmill development areas identified under policy, subject to meeting other policy requirements;
   • The subject land is not suitable for productive agricultural use, given its former uses by the Council and others as a depot and storage yard, and under its current condition;
   • The site is not in a high or very high fire risk area;
   • As discussed later in these reasons, the landscape impacts can be reasonably and acceptably addressed notwithstanding the site's location in a Significant Landscape Overlay area; and
   • As also discussed later in these reasons a range of potential amenity and water quality impacts can be satisfactorily addressed to mitigate such risks.
5. Given the above, I find there is no policy reasons to determine that the site is not suitable for consideration of a sawmill operation of the nature proposed under Mr Schild's permit application.

1. A key consideration in the grounds of the Council and objectors has been that prima facie, the site is unsuitable for the sawmill operations proposed by Mr Schild due to its zoning, buffer distance requirements and local policy. It follows from the above reasons that I do not find this to be the situation. Subject to satisfactorily addressing certain specific amenity and environmental issues, the site is one that can be contemplated for such a use.

WHY HAVE I FOUND THE RISK OF AMENITY IMPACTS TO BE ACCEPTABLE?

1. Before turning to a consideration of the potential amenity impacts, it is useful to consider the setting of the site.
2. To summarise the detail of the site's location as set out in detail by Mr Radisich and Ms Pitty:
   • The land is bound to the north by a Public Use Zone, to the south by Heritage Lane and then a Special Use Zone land. To the west the site is bound by Green Wedge zoned land and to the east is Argoon Road and then an industrial estate in an Industrial 3 Zone.
   • Land uses and development vary. To the north is the wastewater treatment plant. To the west is rural land owned by Mr and Mrs Hill and on which is their recently constructed dwelling. There are three depots developed on the industrial land to the west, one being a council depot, another being the local SES compound and the third operated by a private services company. Other remaining industrial land is yet to be developed. This latter area marks the location of a former sawmill. The Special Use land to the south is yet to be developed and remains open pasture. It is bisected by the Maroondah Highway, a major arterial and tourist route. A tourist resort, including a golf course, is proposed for this land.
   • The nearest dwellings to the site are located to the west (the Hill's dwelling) and to the east and northeast, where dwellings are located in a Low Density Residential Zone immediately east of the existing depots and a Green Wedge A zone north of the depots and east of the wastewater treatment plant.[24]
   • A branch of Piccaninny Creek marks the western boundary of the site. This waterway has essentially been formalised to form a drain down stream of a dam on the Special Use land. A 15m flood easement extends along the western boundary of the site as part of this drainage system. The drain continues its course northward through the wastewater treatment plant eventually connecting to Piccaninny Creek proper once north-west of the wastewater treatment plant. Piccaninny Creek in turn discharges via a natural water course into the Yarra River.
   • A second, 15m wide floodway easement is present along the northern boundary. An internal chain fence separates this easement from the rest of the site.
3. The subject site is low lying with the low point being the drainage line along the western boundary. Land rises most markedly to the west and east, with slightly rising land to the south and north-east. All the surrounding dwellings are higher in the landscape as is the nearby Maroondah Highway. The dwellings to the north-east are largely screened from the site by the rising ground and the location of various buildings and landscaping in the industrial estate. There are opportunities however for the site to be seen when moving about these various properties.
4. The Hills' new dwelling, being angled to the site, has oblique views into the property from inside their dwelling. Outside the dwelling there are unlimited views directly into the site.

1. While a range of issues have been raised in this proceeding, I am left in little doubt that the focus of concern from the neighbouring residents is about noise. Mr Hill seems particularly concerned about the wood chipper, but also raises concerns about the many other pieces of equipment to be used in the sawmill.
2. It seems that the Council, the Hills, other residents and the EPA are concerned not only about noise from individual pieces of equipment but also about the cumulative impact when many operations are occurring together. Council submits that one reason for its refusal was due to Mr Schild not providing sufficient information in respect to this issue.
3. Mr Radisich goes further to suggest that it has not been made clear in the application as to what types of equipment will be used on the site and what their potential for noise disturbance will be.
4. Having now heard from Mr Schild and Mr Upton, I find that many of these issues have been satisfactorily clarified.
5. It is apparent that the equipment to be used on the site and which will form the main sources of potential noise impact are:
   • The portable timber milling equipment;
   • The wood chipper;
   • Various sized chainsaws;
   • The band saw and other wood working equipment such as bench saws; and
   • The sawdust collection and hopper system.
6. There will also be movement of various vehicles into, out of and around the site. These will include trucks delivering timber, trucks taking away products, use of a fork lift and an excavator to move materials around the site.

1. The issue of noise highlights an important point as to what will constitute a real and adverse impact to amenity.
2. Mr Martyn suggests that 'amenity' can mean different things to different people. He adopts a definition that amenity is about the 'liveability of a place manifested through a range of sensory elements such as noise, air quality and visual appeal'. I agree that amenity will mean different things to different people. While his definition seeks to encapsulate those elements that may contribute to amenity, what constitutes amenity may go beyond these elements.
3. In the recent _Swanco_m[25]decision the Tribunal resisted an invitation to define amenity. In their reasons Deputy President Dwyer and Member Bensz suggest that:

...'amenity' is an important but nebulous concept, the assessment of which will depend on a particular location and its surroundings, and the facts and circumstances of a particular matter. Amenity is not in our view a term that can or should be defined or codified for planning purposes.

1. In adopting such a view, as I will do, it seem to me that amenity is not just about noise or visual appeal or air quality. It can be all these things as well as expectations arising from people's lifestyles and the environment in which they choose to live that lifestyle. To further complicate the matter, no-one expectation of amenity is likely to be the same.
2. In my view, the amenity of this location and the surrounding residents is one that is a product of a variety of factors. Those living in the properties around the subject site will have range of outlooks, noise and air quality conditions influenced from surrounding land uses and landscapes. Their perceptions of amenity will also be influenced by their experiences and expectations of their respective locations.
3. In this instance the dwellings are located in a peri-urban environment with amenity being influenced by a range of land uses. These influences range from traffic noise (and other impacts) from Maroondah Highway, various urban and semi-urban activities within and around Healesville, the abutting industrial land uses and the treatment plant. There is even the noise from a regular stream of over flying aircraft I observed on the day of the inspection. There will no doubt also be noise and odours from rural activities on Mr Hill's and other properties from stock, use of vehicles, cutting of wood and other activities.
4. The degree of impact to overall amenity will also be dependant on how often there is a perceptible disruption to amenity by some particular element or event.
5. It is in this context that I find that it would be unreasonable to not expect to hear vehicle noise during day time hours, similar to that to be found elsewhere in the general location of the site and the surrounding dwellings. I therefore do not accept that it would be a source of adverse impact on the amenity of the area.
6. The potential for adverse impact arises from the introduction of potential noise sources that one would not expect to hear on a regular or even irregular basis. Such noise sources could include the use of various timber cutting equipment, the wood chipper and the dust hopper. Quite rightly, the focus of the noise assessment program by Mr Upton has focused on those pieces of equipment that have the most potential to stand out, be noticeable and potentially be detrimental to the amenity of the neighbourhood.

1. Apart from the use of separate items of equipment as set out earlier, concern has been expressed that noise testing, and indeed the site demonstrations only used one piece of equipment at a time. There is a clear concern that when more than one machine is operating, the noise impacts will be worse.
2. The matter of multiple pieces of equipment was addressed by Mr Upton in his expert evidence. He notes that the addition of noise levels is not arithmetic and two or more noise sources of similar power sound levels will not double the audibility of noise. He indicated that where sound power levels are similar in strength the increase in noise levels would be barely perceptible.
3. I accept that this may be so in terms of power levels however, perception of noise is also influenced by tone and impulse. In this instance however, Mr Upton's assessment indicates that the noise levels, even if collated from multiple pieces of equipment, will remain so low as to be audible but not so audible as to be disturbing. These levels are so low, that even with tonal or impulse penalties, it would appear that this situation would not change.
4. Thus in considering the impact of noise, I have done so on the basis that the testing and demonstrating of the potentially noisiest equipment by Mr Upton and Mr Schild is appropriate. This includes the log trimmer, chainsaws and wood chipper, all of which have various tonal and impulse character. In my view, there is no need to assess the operation of several pieces of equipment together.

1. Mr Schild's operations were the subject of considerable scrutiny during the site inspection and demonstration of various equipment. Perhaps this was more so than many other permit applications would be subject to. It was undertaken at the agreement of all parties, with Mr Hill particularly anxious to have the Tribunal observe operations and noise levels.
2. As has been often stated by various tribunals, site inspections , particularly unaccompanied ones, are primarily for the purposes of understanding the evidence and issues raised in the proceeding. They are generally not an independent evidence gathering exercise and outcomes from site inspections must be applied carefully.[26]
3. In this particular hearing, the inspection went beyond the normal viewing activity. The demonstration of various pieces of equipment in front of all parties and the Tribunal provides an opportunity to compare expert evidence with first hand observations. However such observations form but one part of the decision making process. I have regard to the observations I made in the operation of the equipment. I have also had regard to the submissions of the other parties before and after the demonstrations, to the expert evidence and the advice from the EPA to the Council tendered in this proceeding. Thus the site demonstrations form but one part of an overall weighing of the facts and other materials.

1. I believe it is necessary to address separately the concerns about the wood chipper. As I have noted, its is a particular concern of Mr Hill, and subsequently has raised the fears of other neighbouring residents.
2. Mr Hill contends that the wood chipper would be the loudest source of noise and will impact on the surrounding amenity. He does not accept that the building enclosure or chipper can be treated to attenuate these impacts.
3. Unfortunately Mr Upton did not measure the noise levels of the wood chipper without acoustic treatment. It is therefore difficult to directly quantify the degree of attenuation achieved by his testing of the chipper when enclosed with the hay bales.[27]
4. However, the research report tendered by Mr Hill about wood chipper noise provides a useful reference by which to make some general observations.[28] This document reports on the noise assessment of various mobile wood chippers. Of these, Test Item C, a diesel powered road towed model, appears to closely resemble that demonstrated by Mr Hill and similar to that tested by Mr Upton. Test item C was assessed as having an overall noise emission of between 112.5dB(A) to 123 dB(A) depending on the wood fed into it.[29] Other models demonstrated similar power sound levels. In all cases the sound levels are well above the 79 dB(A) level recorded by Mr Upton for the log trimmer.
5. The observed differences in noise levels during demonstration of the two pieces of equipment is also in line with the differences in these reported noise levels.
6. It would appear then that Mr Hill is quite correct in so far as of all potential noise sources, the wood chipper would be the loudest.
7. The wood chipper research is also useful in understanding the variation in noise levels due to material fed into the chipper as well as the directional nature of the generated noise.[30]
8. In terms of materials, in nearly all cases, and notably in the case of Test Item C, trimmed timber generated higher sound levels than untrimmed. Softwood timber generated lower sound levels than hardwood. The researcher concludes that the reason for the variations is due partly to the behaviour of the timber feed in the feed hopper. Bouncing or vibration of hardwood and trimmed feedstock is greater and generates higher sound levels.
9. The research shows however that with treatment of the feed hopper, noise levels can be reduced.[31] Changes include feed hopper design and dampening of the hopper.
10. Interestingly, sound generation from most models, including Test Item C, is directional. Greatest sound levels are recorded from in front of the feed hopper. Sound levels to the side of the wood chippers, including the discharge chutes side are considerably lower. For Test Item C the differences are some 3.5 to 7 times lower.
11. Again I note that the observations during the demonstration align with these research results.
12. From all of this it is apparent that:
    • If the models tested under the research report are any guide, the simulated attenuation treatment tested by Mr Upton displays a significant reduction in overall sound levels consistent with his professional opinion of a 28dB reduction that can be achieved by appropriate acoustic treatment.[32]
    • The highest noise emissions are generated in the direction of the feed hopper, which would mean that under Mr Schild's proposal, this noise would be directed into the shed and not outward. Noise levels from the discharge chute, facing out toward the chip hopper are likely to be from three to seven times lower; and
    • Dampening and shrouding treatment of the feed hopper will assist in reducing the greatest noise emissions.
13. The feed material from Mr Schild's operation will be a mix of off cuts and trimmings. It will be both hard wood and soft wood. From the research findings I would understand this to mean there will be some variation in the noise levels. However, this is not as important as the points I have set out earlier that overall there are means by which to attenuate the level of noise. I am satisfied that the proposal to house the chipper within an acoustically treated building along with other acoustic treatments (if required) can be relied upon to reduce the level of noise to an acceptable level.

1. There was considerable testing of Mr Upton's evidence about noise levels and the manner by which Mr Upton undertook his assessment. Clearly Mr Upton's assessment does not meet all the requirements of a formal assessment under the required State Environmental Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1. While he may have undertaken an assessment of zoned noise limits for the Hill residence he did not do so for the other sensitive areas. Nor was all the recording of background noise in compliance with requirements of the schedules to the N-1 policy.
2. What Mr Upton has done however is provide testing of noise emissions from the two greatest sources of noise, the wood chipper and log trimmer. Such testing has allowed an assessment to be made of the level of noise at key locations from this equipment. In almost all instances that level of noise will not be greater than existing background noise levels. Mr Upton therefore concludes that there will be no adverse amenity impact.
3. While not compliant with all the SEPP N-1 requirements, I accept that Mr Upton's assessment provides a practical indication of the noise emission levels from the operation of the equipment so tested and its likely levels at key sensitive locations. Given the comparative levels of existing noise levels and those to be generated from the equipment, as tested in the open, it is apparent that the emission levels are comparable to current background levels.
4. However, the main sources of noise generation are to be housed within an acoustically treated shed. Mr Upton indicates that the proposed acoustic treatment is capable of reducing sound levels by some 28dB. Even at half that level, the log trimmer would be inaudible at the residences. It follows that the operation of other quieter equipment inside the shed, such as bandsaws and bench saws will similarly not be detrimental.
5. The level of attenuation indicated by Mr Upton is comparable to the reduction achieved in his testing of the wood chipper when surrounded by the hay bales. While some are cynical of such an exercise, I am satisfied that it demonstrates how attenuation can be achieved.
6. I find that there is a high degree of confidence that the sources of potential noise are:
   • at first instance not so loud as to have an unacceptably high risk of impact to surrounding residential amenity; and
   • the housing of equipment inside an acoustically treated building and adoption of electric motors will further reduce the level of noise to reduce this risk further.

I accept therefore that the risk to adverse amenity impacts is acceptably low.

1. The EPA expresses similar views in its response to the Council dated 22 January 2009.
2. Finally I note that Mr Upton is correct in stating that in any event Mr Schild will be required to meet the N-1 noise limit requirement along with permit amenity conditions. This is true but I consider it appropriate that I be satisfied that this can be reasonably be expected to be achieved. In this respect I find that Mr Upton's evidence demonstrates that noise levels are not so loud that they could not be reduced to acceptable levels by reasonable and practical steps. I accept his evidence that there are proven and practical ways to address noise mitigation to achieve the required if such a level of attenuation is ultimately required.

1. I consider it first appropriate to consider the context of the neighbouring dwellings, which I set out earlier. The dwellings to the east and north-east of the site are located adjacent to the wastewater treatment plant and the depots within the industrial estate.
2. Mr Upton's evidence is that these dwellings are subject to various noises from traffic along the Maroondah Highway and other activity within Healesville and the industrial estate. Noise observed during the site inspection, while but a snap shot of conditions, is in line with such evidence. Background sound levels recorded by Mr Upton in Henry Street lend further weight to the conclusion that this area is reasonably robust from an acoustic perspective. That is to say there is general 'hum' of background noise in the area; the background soundscape for want of a better term.
3. Given the above and my findings as to the level of noise likely to be generated, there is capacity for noise from the subject site to be absorbed into the background soundscape. I consider that the evidence and the site demonstration indicate that the level of noise generated from the site will be of such a low audible level and tone that it would be so adsorbed. Put another way, the level of noise would not be sufficient to impact on the existing amenity of this area.
4. There will be other activity outside the shed, including the possible use of chainsaws, as well as trucks, forklifts and other heavy equipment to load or unload wood. Mr Upton's evidence is that noise generated from such activity will be intermittent and may be audible. This does not equate to an adverse amenity impact.
5. I accept this view given the context of the surrounds I have set out earlier and a consideration of such intermittent noise. There are no doubt times when the adjoining depots operate machinery and vehicles and carry out other noisy works expected in such premises. These activities, like those set out above will be intermittent. No objector bought to my attention any issue of noise pollution from these sources. I see no reason to penalise Mr Schild's operation for undertaking similar intermittent activities.
6. I further note that the sawmill operations will be limited to day time periods from Monday to Saturday morning. No operations are proposed or will be permitted in the more sensitive evening or night time periods.
7. I am therefore satisfied that sawmill can operate in a manner that will not adversely impact the amenity of these residents through its generation of noise.

1. Mr and Mrs Hill's dwelling is located in an area more distant from many of the background noises sources affecting the Henry Street area. Nevertheless the acoustic environment is affected by the Maroondah Highway traffic and no doubt occasional noise from other sources such as the wastewater treatment plant.
2. Mr Upton's assessment of noise impacts from the operation of the log trimmer and wood chipper is that it may be audible but not so much as to be an adverse impact to the amenity of the Hill's dwelling.
3. Much of what I have set out above for the objector's amenity in and around Henry Street applies to the Hill's situation. Noise generating activity is to be limited to day time periods. Outside activity on the site is limited to intermittent noise generation. The acoustic treatment of the shed will attenuate noise generated from the log trimmer, chipper and other wood cutting or trimming equipment. Further, I accept that dust collection and hopper systems, which will face toward the Hills' dwelling, can be designed and operated in a manner that can also address noise generation. It is well established technology with a variety of shrouding options available to reduce noise emissions.
4. Mr Schild's will be required to comply with such requirements under the permit and by way of Environment Protection legislation. If he cannot comply then his operations can be subject to enforcement actions.

1. It follows from the above that I am satisfied that despite the views expressed as to the inherent noisiness of some equipment, this particular sawmill operation can be undertaken in a manner that will not result in unacceptable noise amenity impacts.

1. Much of the complaints or concerns about dust, smoke and other air quality impacts arise from past use of the site. As I have set out earlier, the granting of this permit is prospective. It is about what will occur not what has occurred.
2. In this respect, it is relevant that the use of dust collection and wood chipping systems will negate the need for burning of wastes. The enclose hopper or skips will also remove sources of sawdust. Raised dust from vehicle operations can be controlled if necessary, through treatment of surfaces.
3. I am satisfied that the permit conditions provide sufficient control over the activity of the site to ensure that operations will properly control dust and other sources of potential impact to air quality.

WHAT ABOUT LANDSCAPE IMPACTS AND THE SIGNIFICANT LANDSCAPE OVERLAY?

1. It is submitted that being in a Significant Landscape Overlay, the building and other works proposed for this site are contrary to the objectives of that overlay and relevant planning policy. In particular Clause 22.02-3 seeks to avoid sawmills being located in Significant Landscape Overlay areas. It is also submitted by Mr Radisich that the buildings, timber storage racks and general conditions across the site, will present an adverse impact to views from the Hill's property.
2. A permit is required for the building and works under the overlay. A permit is also required under Clause 53, which amongst other purposes seeks to maintain rural landscapes. Decision guidelines call for consideration of amongst other matters Clause 65, the state and local planning policy frameworks,[33] the statement of key elements and the nature of the landscape, landscape values and the impact of the building or works.
3. Mr Martyn and Mr Merrigan, quite correctly in my view, recognise that the subject site has two settings. One is where the backdrop of the site is to open rural land. The other is where the backdrop is to the industrial land, beyond which is the urban backdrop of Healesville.
4. Mr Merrigan's evidence is that from various vantage points, including the key tourist route of the Maroondah Highway, as well as from the east, the site is not visually prominent due to its being lower in the topography. The site is also largely screened from the east by the depot buildings. The main views of the site are to be gained from the west and from Argoon Road.
5. In addition, it is submitted that the proposed landscape plan will provide screening of the buildings and to add to the visual amenity of the area 'by adding canopy and shrub vegetation'.
6. I concur that the site is not visually prominent. It sits low in the landscape. Views from the south and east overlook the site toward the open rural landscape and mountain ranges beyond. From the west, the site marks the transition from rural landscape to urban area. While within the overlay area, no prominent or significant features of landscape values are apparent or have been bought to my attention in respect to this site and its immediate surrounds. Indeed much of the key elements attributed to the area under Schedule 4 of the overlay relate to other areas and not the subject site or its immediate surrounds.
7. While there is policy to avoid a sawmill in a landscape overlay area, policy also provides that the visibility of sawmill sites should be limited by topography and by tree planting. The policy objective is to ensure that a sawmill is not obtrusive to the landscape values.
8. Having regard to the setting and the proposed landscape plan I am satisfied that this policy objective can be achieved. Further, the location of sheds and other structures within this setting is one that will not be discordant with the surrounding rural and urban interface landscape. The buildings will not interfere with views gained when overlooking the site. The proposed landscaping around the boundaries will assist in filtering views into the site and so addresses policy requirements. I accept that the plantings won't necessarily be a 100% block out screen. The buildings and other structures will remain perceptible through the plantings. I do not consider however, that given the setting of this site, such an outcome is unacceptable.
9. The use of native, indigenous species within the landscaping will also assist in addressing policy, overlay and Clause 53 objectives.
10. In its current condition, I agree that the site is visually in poor condition and will benefit from a properly managed landscape program.
11. It follows that I do not find the proposed degree of built form and other works to be to be an unacceptable outcome with respect to the amenity of views and the wider planning objectives in relation to protection and enhancement of the landscape.

WILL THERE BE UNACCEPTABLE IMPACTS TO PICCANINNY CREEK?

1. Mr Hill submits that the proposal will have a number of potential water quality impacts to Piccaninny Creek, largely from contaminated runoff. He is also concerned about filling of the site, which he maintains will affect flood levels. Mr Radisich's submissions reiterate many of these points. He also raises issues about on-site wastewater treatment due to a lack of reticulated sewage. He maintains that this has not been addressed in the permit application and that there appears to be insufficient area to provide for such treatment.

1. It is correct that the use and development of land is required to address a variety of environmental outcomes which includes protection of water quality and improvement to stormwater quality.[34]
2. Mr Merrigan's landscape plan for the site incorporates water sensitive urban design elements that are designed to:
   • Re-use captured stormwater;
   • Minimise impervious surfaces to ensure stormwater discharge flows are maintained to the current pre-development levels;
   • Increase infiltration of rainfall through the use of garden beds; and
   • Treat stormwater through swales and vegetated riparian buffers.

It is his evidence, supported by an assessment of the above treatment features using the Model for Urban Stormwater Improvement Conceptualisation (MUSIC) software that these features will:

• Reduce post development flows from the site into the drainage system; and
• Reduce nutrient, suspended solids (i.e. sediment) and gross pollutant loads.

1. Mr Radisich suggests that the MUISC assessment indicates stormwater will continue to transport sediment, nutrients and gross pollutants off the site. He submits that on this basis, the proposed treatment of stormwater is incapable of meeting Melbourne Water's condition that 'no polluted or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourse'.[35]
2. The vigorous cross examination of Mr Merrigan's assessment by Mr Radisich has established that the MUSIC software is no more than a conceptualisation of catchment responses to landscape conditions, rainfall, runoff generation and stormwater treatment options. It enables assessment of how stormwater quality may be affected by changes in conditions and the use of treatment options. It is based on a series of stochastically determined responses to pollutant behaviour in catchments and treatment systems. It is not a predictive tool of actual processes or of water quality conditions.
3. To suggest that the MUSIC outputs indicate that pollution will continue to occur is taking such an assessment beyond the bounds of its intended use. I do not accept this proposition and nor do I accept that it demonstrates an inability to meet Melbourne Water's stormwater quality condition.
4. What the assessment indicates is that by adopting certain design elements in the landscape plan, elements that are widely accepted as best practice in the treatment of stormwater, improvements in stormwater quality can be expected. That said, many of the potential concerns raised by Mr Hill, such as sawdust contamination of stormwater will be addressed by the proposed improvements to the site operations. Properly finished vehicle movement areas, containment of sawdust and other wastes and filtering of runoff through grass swales are all actions aimed at improving stormwater quality.
5. I find that this proposal meets the objective of relevant planning provisions for stormwater management.

1. The Council's health officer has advised that the proposal is conditionally acceptable. On-site treatment of wastewater is required due to a lack of reticulated sewerage available to the site. Mr Radisich submits that there is insufficient area available on the site for such treatment, given constraints imposed by the flood easements, required setbacks, areas occupied by buildings, other infrastructure, landscaping and areas of low lying, swampy land.
2. Mr Merrigan has consulted with engineers within his organisation. They advise that the applicable rate of wastewater generation for this proposal would be 15L/day/person. For a maximum number of six employees on the site, the volume of treated wastewater would require a trench from 15-30m long at 300mm width. He submits that such an area can be accommodated into the site, including under proposed garden beds if necessary. It is his view that the design of the wastewater treatment system and its location is a matter of detail design.
3. I accept Mr Merrigan's evidence. The demand for wastewater disposal is not great and not nearly as high as for a domestic dwelling. His evidence about the rate of generation is in line with the relevant EPA guidelines.[36] I note further that the condition recommended by the Council's health officer, as incorporated into the permit to be granted, will require adherence to the usual requirements of containment of wastewater on site and the location of the system (which includes discharge areas) to be subject to council's final approval. These are appropriate conditions. I am satisfied that there will be sufficient area available to contain the wastewater on the site, given the low volumes to be treated and the potential for use under garden beds or other areas across the site that are located away from the floodway easement.

1. Submissions were made that the site has been and would require modifications in surface levels that would affect surrounding flood water levels. Mr Hill seemed particularly concerned about flooding of his property, tendering a photograph of conditions said to occur in February 2005 in the local area (but not the subject site)
2. I first note the proposal includes plans, which must by necessity, require some changes to existing surface levels in order for there to be flat building and work areas. A degree of earthworks can therefore be reasonably expected. However none of this will require a change to the levels in the flood easement. It is not surprising then to record that Melbourne Water, the relevant drainage authority, has not objected to the proposal.
3. In the absence of any substantive evidence of how this proposal would affect flood levels to any substantive degree, I see no reason to not accept and adopt the position of the relevant drainage authority.

1. The Council's Municipal Strategic Statement recognises the importance of the timber industry to this shire.[37] Value adding and new timber processing businesses are encouraged, albeit not at the cost of adverse impact to the environment or the shire's amenity. Local policy has been prepared to guide this strategy.
2. There are many elements of this proposal which meet this local policy's requirements; site access, fire safety, connection to reticulated services, pre-existing conditions of the site. Some matters in dispute, such as the potential for impact to water quality and noise control I have found, on balance to weigh in favour of this proposal also. There are some elements that are not supported by policy, principally the site's location in a Significant Landscape Overlay. However a consideration of the merits of landscape impacts and landscaping proposals finds that there is reason to apply discretion to this policy requirement in this case.
3. On balancing all these matters I find that the proposal will meet the overall objective of providing a suitably located, value adding timber processing operation.
4. I concur with the view expressed by Mr Connor in his summing up of this case. Essentially the objections to this application have been about amenity. While other issues have been raised none were pursued with more vigour than this issue.
5. I have examined these issues as set out in these reasons and made findings that lead me to conclude that the operations can be conducted in a manner that will address these amenity impact concerns. Accordingly I conclude that a permit should issue subject to conditions.
6. In framing these permit conditions I have had regard to the submissions of the parties and to the reasons set out above. These conditions will require the sawmill operations to adhere to various performance requirements. Mr Schild or anyone else who so operates under the cover of this permit will be expected to conform to these conditions.

The permit allows use and development of the land for a sawmill including necessary earthworks and a reduction in car parking spaces in accordance with the endorsed plans and permit conditions.

1. Before the development starts, including the removal of any trees or other vegetation, amended plans to the satisfaction of the Responsible Authority (2 copies) must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application, but modified to show:

(a) Treatment of all trafficable areas with permeable surfaces suitable for trafficking by heavy vehicles

(b) All proposed vehicle crossing to be concrete.

(a) Adequate instruction for the protection of existing vegetation that is to be retained during the development.

(b) Shows the location of all plant species that have been proposed in the Plant Schedule.

(c) New lawn areas are to be established using seed and non-invasive grass species.

(d) A note that timber edging around lawn areas or garden beds shall not be Jarrah, Red Gum or Native (White) Cypress Pine (Callitris columellaris) unless it can be demonstrated that they are a recycled product.

(a) A plan or plans displaying existing ground levels, the lateral and vertical extent of cut and / or fill to achieve finished surface levels and finished surface levels.

(a) Plans of stormwater management works generally in accord with the Millar Merrigan Report and stormwater treatment designs of July 2009 (Plan Reference V2, Nov 2008, #13004 L01). The plans shall include as appropriate, the detention of stormwater on site and the use water sensitive urban design principles to reduce stormwater run-off quantity and improve discharge quality to the satisfaction of the Responsible Authority.

1. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
2. The layout of the uses on the endorsed plans must not be altered without the written consent of the responsible authority.
3. This permit will expire if one of the following circumstances apply:
   • (a) the development is not started within two years of the date of this permit;
   • (b) the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. Except with the further written consent of the Responsible Authority, the landscape works as shown on the endorsed plan must be carried out within six months of the completion of the development or commencement of use, whichever occurs sooner. New planting must be maintained or replaced as necessary to the satisfaction of the Responsible Authority.
2. The permitted development must provide a minimum of sixteen car parking spaces.
3. All vehicles associated with the use (including staff vehicles) must be parked within the site boundaries.
4. All vehicles must enter and exit the site in a forward direction.
5. The parking defined on the endorsed plans must not be used for any other purpose (such as storage of materials or goods) other than parking.
6. The use must be conducted in accordance with the Environmental Protection Authority's SEPP (Control of Noise from Commerce, Industry and Trade) No. N-1. All works necessary to comply with the requirements of the SEPP (Control of Noise from Commerce, Industry and Trade) No. N-1 must be undertaken to the satisfaction of the Responsible Authority.
7. All external lighting provided on the site must be baffled so that no direct light is emitted beyond the boundaries of the site and no nuisance is caused to adjoining properties.
8. Unless with the further written permission of the Responsible Authority the use may operate only between the following hours:
   • (a) Monday to Friday - 7:30am - 5:30pm
   • (b) Saturday - 8:00am - 12:30pm

No operations are allowed on Sundays or public holidays.

1. Unless with the further written permission of the Responsible Authority deliveries to and from the site (including waste collection) must only take place between:
   • (a) Monday to Friday - 7:30am - 5:30pm
   • (b) Saturday 8:00am - 12:30pm

No deliveries are allowed on Sundays or public holidays.

1. Unless with the prior written permission of the Responsible Authority no more than 6 staff may be present on the premises at any one time.
2. The use and development must be so managed that the amenity of the area is not detrimentally affected through the:
   • (a) transportation of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials; or
   • (c) emission of noise, artificial vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste products, grit or oil.
3. When not in use, any equipment, tools or other associated goods on the site must be stored within the permitted building or other locations as designated on the endorsed plans.
4. Suppressors shall be fitted to any power tools which are found to cause electrical interference in adjacent residential areas.
5. No sawdust or any other waste material from the use hereby permitted may be stored / stockpiled outside the buildings on the site except in hoppers or other suitably closed or covered containers.
6. Prior to the use of the site commencing all stormwater management works as set out on the endorsed stormwater management plans must be completed to the satisfaction of the Responsible Authority.
7. Prior to the occupation of the permitted development, the parking areas, vehicle traffic areas and loading areas shown on the endorsed plan must be constructed and finished, drained and delineated, in accordance with the endorsed plan to the satisfaction of the Responsible Authority.
8. Prior to the occupation of the permitted development, concrete vehicle crossing(s) must be constructed in Argoon Road to the satisfaction of the Responsible Authority.
9. Prior to the occupation of the permitted development all internal civil works, including car parking, trafficable areas and stormwater drainage are to be inspected and approved by a suitably experienced civil engineer or person to the satisfaction of the Responsible Authority. The inspecting person must supply written certification that the works have been constructed in accordance with the approved plans.
10. The parking areas, trafficable areas including loading areas, and drainage approved under this permit must be maintained to the satisfaction of the Responsible Authority and must not be obstructed or made inaccessible.
11. The loading and unloading of vehicles and the delivery of goods must be carried out at all times within the site boundaries.
12. Wastewater from the proposed development must be discharged into a new on site septic tank system designed and located to the satisfaction of the Responsible Authority.

1. Within one month of the commencement of the use, a noise assessment report must be submitted to the satisfaction of the Responsible Authority, in consultation with EPA. The noise assessment report must be prepared by a suitably qualified acoustic consultant. The assessment must demonstrate that noise emissions from the premises complies with the noise limits determined to be applicable at the nearest noise sensitive areas, in accordance with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 (SEPP N-1). Where there is non-compliance the assessment must identify works required to ensure compliance.

(a) Identification of and assessment for the nearest dwelling to the west of the site and nearest dwellings to the east and north-east of the site.

(b) All likely noise levels produced from the operation of equipment on the site whether inside or outside the buildings;

(c) Measurement of background noise over the day and evening time periods; and

(d) The contribution from all nearby industrial sources to ensure the noise levels at this premises are controlled so that the contribution, when combined with other sources (cumulative effect), will meet the noise limit at the noise sensitive area(s), in accordance with clause 18 of the policy.

Any works specified by the acoustic consultant to ensure compliance with SEPP N-1 must be undertaken to the satisfaction of the Responsible Authority.

1. Bulk liquid products (such as oils and fuels) are to be stored within a bunded area in accordance with EPA Publication 347 Bunding Guidelines.

1. No polluted and/ or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drain or watercourses.
2. Finished floor levels must be minimum of 600mm above the applicable flood level.
3. The existing alignment of the drainage channel is not to be altered by the proposed property development.
4. There is to be no increase in flood levels as a result of the development hereby permitted.
5. Prior to the commencement of works a separate application, direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or Watercourses. Prior to accepting an application, evidence must be provided demonstrating that council considers that it is not feasible to connect to the local drainage system.

[1] The full eight grounds of refusal have been set out in the Notice of Refusal and in the Council's written submission.

[2] These materials have been retained on the Tribunal's file.

[3] (1985) 3 PABR 249.

[5] [2004] VSC 375 at [13].

[6] Kaso v Coburg City Council & Anor 9AATR p119.

[7] [2003] VCAT 1785.

[8] Curiously, the order of the Board in Van Egmond records Mr Radisich's participation in that proceeding. Mr Radisich's advancement of argument in this proceeding would seem to have been undertaken with a knowledge of what had gone before and after Kaso and the views of at least the former Planning Appeals Board, if not the subsequent endorsement of such views by His Honour.

[9] Smith v Shire of Flinders 1 PABR 183, Hodgetts v Shire of Metcalf 26 APAD 99; Bowman v Shire of Woorayl 12 VPAD 116.

[10] 1 PABR 183 at [185].

[11] Unreported P781/2004 at [123]; Commentary on this conclusion is to be found in 19VPR 245.

[13] As I have previously noted, Mr Schild was also in possession of professional planning advice as to the characterisation of the use of his site in this way rather than as the acknowledged alternative of being a sawmill.

[14] Environment Protection Authority Publication July 1990.

[15] [2007] VSC 126.

[19] Interestingly under the other possible underlying zoning of Industrial 3 Zone, where a sawmill would also be as section 2use, the buffer distance in Clause 52.10 are also not a condition of use.

[20] See for instance the objectives of planning under s.4 of the Act and the decision guidelines under Clauses 36.04-1 and 65.01.

[21] A relevant matter under s. 84B(2)(e) of the Act.

[22] Clauses 15.01, 15.02, 15.04 and 15.05.

[24] I will refer to these latter areas as the Henry Street Area.

[25] Swancom Pty Ltd v Yarra CC (includes summary) (Red Dot) [2009] VCAT 923.

[26] This is discussed in more detail in Swancom at [18].

[27] These hay bales were used to simulate the level of attenuation said to be achievable by acoustic treatment of the shed.

[28] Noise emissions and exposure from mobile woodchippers. Prepared by Health and Safety Laboratory for the Health and Safety Executive 2008. Research report RR618.

[30] Ibid at Tables 3, 4 and 5 and discussed at page 14.

[32] The research report noise emission levels of 112 to 123 dB(A) for Test Item C, equivalent to an LAeq range of 86 d(B) to 97 d(B) (see calculations of results under section 5 of that report). Other models are reported to have similar noise emission levels.

Mr Upton reports an LAeq of 50d(B) in his testing of the chipper when surrounded by straw bales. Assuming comparable machinery, the difference in sound levels is comparable to his professional opinion that a 268 d(B) reduction can be achieved by the acoustic attenuation treatments proposed by Mr Schild.

[33] Relevant policy considered includes that under Clauses 12.02, 21.07and 22.02.

[34] See for instance Clauses 15.01, 22.02 and 65.01 of the Planning Scheme.

[35] Condition 1 of Melbourne Water referral response dated 29 February 2008.

[36] Code of Practice - Onsite Wastewater Management Publication 891.1 September 2008 at page 15.