Seter v Moorabool SC [2010] VCAT 593

1. Pursuant to Section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the Application is amended to seek a review of Conditions 5, 11.2 and 11.3(a).
2. The decision of the Responsible Authority is affirmed. Planning Permit No. PA2009-160 must contain Conditions 5, 11.2 and 11.3(a).

Mr Michael Nelthorpe, Town Planner of Glossop Town Planning.

Section 80 Planning and Environment Act 1987

cl 35.03-1 (use of land within the Rural Living Zone for the purpose of a dwelling)

cl 35.03-4 (construction of buildings and works in association with a Section 2 use)

cl 42.01-2 (construction of buildings and works on land within the Environmental Significance Overlay)

The review site is located on the northern side of Bronzewing Road, Lal Lal. The site is irregular and has an area of 2.49 hectares. A shed is situated in the north-east corner of the land. The property is otherwise vacant.

Rozen v Macedon Ranges SC [2009] VCAT 2746

Archibald v Moorabool SC [2010] VCAT 163

1. The Moorabool Shire Council has issued a Planning Permit for the construction of a dwelling on the review site. The Permit is subject to a number of conditions.
2. The Applicant has applied to the Tribunal for a review of the following conditions:
   1. All effluent generated by the dwelling must be treated to a 20/30 standard via an Aerobic Wastewater Treatment Plant with shallow sub surface irrigation.

[11. The following shall be undertaken to the requirements of Central Highlands Water and the. satisfaction of the responsible authority:]

11.2 The owner shall install an aerated wastewater management system that provides a secondary level of treatment of wastewater. This system shall be installed with shallow subsurface effluent irrigation to the satisfaction of the Moorabool Shire Environmental Health Officer.

[11.3 Prior to a Building Permit being issued for a dwelling the owner shall enter into an agreement with Central Highlands Region Water Corporation (CHW) and the responsible authority under Sections 173 and 174 of the Planning and Environment Act 1987, requiring that:]

(a) The owner shall have any wastewater treatment facility and effluent disposal system for the dwelling inspected annually by a qualified environmental health officer (" EHO") and shall provide annually to both the Shire and to CHW a written report from the EHO on the condition of the wastewater treatment and effluent disposal system.

1. Condition 5 has been imposed by the Council. Conditions 11.2 and 11.3(a) are a requirement of Central Highlands Water (CHW), a referral authority under the Planning Scheme.
2. Having regard to the policies and provisions of the Moorabool Planning Scheme, the submissions of the parties and the context of the review site, the Tribunal must decide whether the conditions should be varied or deleted.

1. The planning policy context of the Moorabool Planning Scheme as it applies to development and use of land in open potable water catchments was summarised in the determination of Archibald v Moorabool SC [2010] VCAT 163. I adopt that summary, which is reproduced below:

[10] Put simply, it is policy that water quality in the Moorabool Shire, and indeed in Victoria as a whole, is protected. This is confirmed by reference to the State Planning Policy Framework.[2] The Municipal Strategic Statement[3] highlights the fact that much of the Shire is within Special Water Catchments and notes the constraint that this places on the development of land, as these areas have limited development potential. It too seeks to protect the quality and quantity of water in local watercourses and limit downstream effects associated with new development.[4] It is policy to limit residential development in areas without reticulated services where the development would compromise water quality, particularly in Special Water Supply Catchments.[5] These themes are reinforced through the local policies to be applied in the assessment of permit applications with particular reference to the potential effects of sewage disposal.[6]

1. In addition to the policies contained within the frameworks of the planning scheme, two other policies that are relevant to the consideration of the issues in this case. These, too, were summarised in Archibald at paragraphs 13-20 as follows:

Planning Permit applications in open, potable water supply catchment areas (Department of Planning and Community Development, May 2009)

The Department of Planning and Community Development (DPCD) has prepared guidelines for planning applications in open potable water supply catchments. These Guidelines have been adopted by the Minister for Planning for the purposes of s.60(1A)(g) of the Planning and Environment Act 1987.

The Guidelines state that the State Environment Protection Policy (Waters of Victoria) requires the application of the precautionary principle to guide decisions about the protection and management of Victoria's surface waters when considering a permit for a septic tank system. The Guidelines state that the proper application of the precautionary principle requires consideration of the cumulative risk of the adverse impact of onsite waste water / septic tank systems on water quality in open potable water supply catchments resulting from increased dwelling density.

While we have considered each of the Guidelines, Guidelines 1 and 2 are particularly relevant to this application. Guideline 1 reads:

Where a planning permit is required to use land for a dwelling or to subdivide land:

►the density of dwellings should be no greater than one dwelling per 40 hectares (1:40 ha); and

►each lot created in the subdivision should be at least 40 hectares in area.

This does not apply if a catchment management plan, water catchment policy or similar project addressing land use planning issues and the cumulative impact of onsite waste water/septic tank systems has been prepared for the catchment, and the objectives, strategies and requirements of the plan or project have been included in the planning scheme.

Notably (and importantly) according to the Guidelines, the only instance where Guideline 1 does not apply is where a planning scheme addresses land use planning issues and the cumulative impact of onsite waste water/ septic tanks. It was common ground between the parties that the Moorabool Planning Scheme does not include these.

Guideline 2 requires that all developments generating wastewater must be connected to a reticulated sewerage system if available. Where such a system is not available, onsite wastewater or septic tank systems are required to collect, treat and dispose of (or reuse) the wastewater that is generated on the land. The Guideline foreshadows the need for the preparation of a land capability assessment to determine whether the proposed development of an unsewered lot is sustainable. Onsite systems must be approved by the Environment Protection Authority and must be installed in accordance with the EPA Publication 891.2 Code of Practice - Onsite Waste Water Management, December 2008.

Protecting Water Quality in the Moorabool Shire - Water Catchment Protection Policy

Council submitted a copy of a policy titled "Protecting Water Quality in the Moorabool Shire". This policy has been developed in conjunction with the four water authorities listed as referral authorities in the Planning Scheme, namely Central Highlands Water, Barwon Water, Southern Rural Water and Western Water. It states that the authorities will use the policy to assess planning applications directed to them by Council for comment pursuant to Sections 52 or 55 of the Planning and Environment Act 1987.

This policy mirrors the DPCD Guidelines as it refers to a maximum density of 1 dwelling per 40 hectares in the Rural Living Zone. It states that the density will be established by calculating the number of dwellings within one kilometre of radius of the site of the proposed dwelling and that areas within public ownership will not be included when calculating dwelling density. The policy also states that the 1:40 ha density is a reasonable benchmark for dwelling density in special water supply catchments having regard to the current state of scientific knowledge and the precautionary principle.

Under the policy, a number of criteria must be addressed if a higher density is being sought. The document also contains policies addressing the construction of buildings and works, subdivision of land and effluent disposal systems. Decision guidelines are provided.

IS A SECONDARY LEVEL OF WASTEWATER TREATMENT NECESSARY IN THIS INSTANCE?

1. Mr Nelthorpe confirmed that the land is within the catchment of the Lal Lal Reservoir, which supplies potable water to a number of urban settlements, including Geelong and Ballarat. As reinforced in the recent decision of Rozen v Macedon Ranges SC [2009] VCAT 2746, the protection of water quality is of paramount importance when assessing proposals for the development and use of land within such areas. Integral to achieving this outcome is the application of the precautionary principle.
2. At paragraph 10, the Rozen decision quotes the description the precautionary principle as stated in the Intergovernmental Agreement on the Environment:

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:

1. Careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
2. an assessment of the risk-weighted consequences of various options.

1. An important element of any assessment, and in the application of the precautionary principle, is a Land Capability Assessment (LCA). A requirement for a LCA is referred to in Schedule 1 to the Environmental Significance Overlay and in both the DPCD policy and the Moorabool policy.
2. The applicant provided a LCA with the Planning Application. The LCA was prepared by Provincial Geotechnical Pty Ltd. It considered a range of land features (including site drainage, runoff, proximity to watercourses, landslip, groundwater, average rainfall and soil permeability) and gave the site an Overall Rating of 'Poor'. This rating is primarily attributed to the relatively high average rainfall of 750mm - 1000mm per year. Notwithstanding this rainfall characteristic, the LCA notes that the "excellent landform and drainage in the proposed Land Application Area" mitigate this feature.
3. Mr Seter submitted that the LCA had been undertaken in accordance with the requirements of the Council and the Planning Scheme, by a suitably qualified geotechnical engineer, and that the findings of the LCA that a primary treatment process is satisfactory should be adopted.
4. It was Mr Nelthorpe's submission that the LCA displays a number of deficiencies, namely:
   • There is no mention of the site being a Special Water Supply Area.
   • The proximity or otherwise of the land to reticulated water or bore water is not identified.
   • The DPCD policy and associated guidelines are not discussed.
   • There is no discussion of dwelling density.
5. Mr Nelthorpe's submission also disputed the LCA findings that the soil is suitable for disposal by both conventional absorption trenches and irrigation, stating that inspections by CHW had identified saturated soils and perched water above the level of conventional trenching. He also referred to the findings of a Geotechnical Assessment for the dwelling foundations, also prepared by Provincial Geotechnical Pty Ltd, that the site has 'fair' surface and sub-surface drainage and that 'impermeable clays may become inundated during wet periods'. Mr Nelthorpe submitted that the rainfall analysis in the LCA does not take into account the higher rainfall during the months of July to September, with the outcome being that the disposal area would be overloaded during the winter months.
6. I have found the submissions made on behalf of CHW to be persuasive. In my view, the fact that the dwelling will result in a density which is approximately four times higher than that specified in the DPCD Guidelines, is a critical consideration. As noted earlier, the question of whether or not a dwelling should be constructed on the land is not before me. That decision has already been made, as evidenced by the grant of a permit. The resultant density of 1:9ha, however, indicates that a high degree of caution need exercised in determining the nature of the wastewater treatment and disposal.
7. As stated in the Rozen[7] decision, every time a dwelling is allowed within a water catchment, the risk of contamination is increased. I consider that the risk must be higher in circumstances such as this (where the density is significantly in excess of the 1:40ha nominated in both the DPCD Guidelines and the Moorabool Policy) than would be the case if the benchmark density was met. Indeed, I note that Tribunal in Rozen accepted that experience indicates that water from catchments with dwelling densities at around 1:40ha requires a certain level of treatment and higher densities require much higher levels of treatment. The Tribunal in that case placed significant weight on the DPCD Guidelines in achieving an outcome that would not compromise water quality within the catchment. I adopt an identical approach in my assessment and determination of this application.
8. As a response to the site's characteristics, including its location in a potable water catchment, and the resultant dwelling density. - which significantly exceeds the 1:40ha - I have concluded that the requirement for a secondary treatment of wastewater is justified in this instance. I will require that Conditions No. 5 and 11.2 remain on the Permit.

IS THE CONDITION REQUIRING THE ONGOING INSPECTION AND REPORTING OF THE SYSTEM NECESSARY?

1. I have formed the view that, as part of ensuring that water quality is protected and that the risk of contamination is adequately managed, a condition requiring the ongoing monitoring of the system should form part of the Permit. I agree with the submission of Mr Nelthorpe that this condition allows "effective independent monitoring of the system and reduces the risk of endemic failure". Again, while important for any on-site wastewater treatment regardless of the context, I consider that maintenance of the system is particularly important in this circumstances given the density of development in the area.
2. Mr Nelthorpe referred me to the Tribunal's decision in Ronan v Moorabool SC [2007] VCAT 245 where the Tribunal found that a Section 173 Agreement was an appropriate mechanism to secure the obligation for ongoing maintenance primarily on the basis that CHW had an established system for management of septic systems within its area[8]. The Tribunal expressed its reluctance to interfere with this established management regime. I agree with, and adopt, the findings of the Tribunal in this respect. I also agree with Mr Nelthorpe that a Section 173 Agreement assists in ensuring the subsequent owners of the land are made aware of the obligations relating to the maintenance of the wastewater treatment and disposal system, as the Agreement would be registered on Title.

1. For these reasons, I have determined to affirm the decision of the Responsible Authority. I will direct that Conditions 5, 11.2 and 11.3(a) remain on Planning Permit No. PA2009-160.

[1] I have considered all submissions and accompanying material, assisted by my inspection. I do not recite all of the material presented as all documentation is retained on the Tribunal's file.

[2] Clause 15.01 Protection of catchments, waterways and groundwater.

[3] Clauses 21.01 (Municipal Context), 21.02 (Natural Environment) and 21.03 (Settlement).