APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

Consideration of WorkSafe's Land use planning near a Major Hazard Facility guidelines and Environment Protection Authority's Recommended Buffer Distances for Industrial Residual Air Emissions, AQ2/86 - Concept of the 'tyranny of small decisions'

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

Consideration to include an Overlay in the Hobsons Bay Planning Scheme to recognise there may be restrictions on development within the buffer area of the Major Hazard Facility.

The Tribunal determined that due to its extremely close proximity to a Major Hazard Facility an increase of two dwellings on the land in a Residential zone is unacceptable.

The Responsible Authority issued a Notice of Decision to Grant a Permit allowing for the demolition of an existing dwelling and the construction of 3 townhouses directly opposite Shell's fuel storage facility at Newport. The part of the Newport Fuel Terminal operated by Shell is listed as a Major Hazard Facility as defined by the Occupational Health and Safety Regulations 2007.

Two issues were considered by the Tribunal: Should the Environment Protection Authority's buffer distance requirements be considered? and Should a permit be issued to develop additional dwellings on a site in close proximity to a Major Hazard Facility?

Neither WorkSafe or the EPA are referral authorities for such an application under the Hobsons Bay Planning Scheme but the Responsible Authority referred the application to both. The EPA responded by referring to the 300m buffer distances for fixed roof tanks referred to in its Recommended Buffer Distances for Industrial Residual Air Emissions, AQ2/86. WorkSafe advised against the development due to its location in the inner planning advisory area which extends 185m from the fuel storage tank bunded area included in a map of Land Use advisory areas for Newport Fuel Terminals. The review site is 59m from the closest bund wall.

WorkSafe although not a party made a submission to the Tribunal submitting 'should a major incident occur at the Newport Terminal there is a risk of fatality, serious injury or of not being able to respond to an emergency situation. He also submitted the granting of this permit may also set a precedent for significant future increases in exposure of people to risks to health and safety ... by future intensification of other residential land near the Newport fuel terminal.

The Responsible Authority took the view that as neither the EPA or WorkSafe were referral Authorities their comments need not be considered and even if they were referral authorities it was not appropriate to refuse the application due to the small increase in density that is proposed. The development meets Hobsons Bay planning objectives such as Clause 21.01-9 which directs how infill development in a heritage area will be achieved.

The Tribunal accepted the concept of the tyranny of small decisions referred to in Southern Capital Corporation v Port Phillip CC [1999] VCAT 130.

The Tribunal noted the EPA's AQ2/86 is a reference document in the planning scheme and weight should be given to the WorkSafe guidelines. To allow for an increase in the density of development on the subject land, would introduce a very small increased marginal societal risk but based on the tyranny of small decisions it would, in the end, set a precedent for similar developments in the area and it would be irresponsible to approve the development, albeit with its resulting very small increase in population density.

Section 82 Planning and Environment Act 1987 - development of three double storey dwellings - proximity to major fuel storage depot - safety - density of development

Shell Company of Australia v Hobsons Bay CC & Ors (includes Summary) (Red Dot) [2012] VCAT 1184

1. The decision of the responsible authority is set aside.
2. In permit application PA11224466 no permit is granted.

Mr N J Tweedie, Barrister instructed by Allens Arthur Robinson

Mr B Chessell, Barrister instructed by Blackburn Lawyers

Demolition of existing dwelling and construction of 3 townhouses

Applications under Section 80 and 82 of the Planning and Environment Act 1987.

Clause 32.01-4 - construct two or more dwellings on a lot

Clauses 13.04-2, 17.01, 17.02, 17.02-3, 22.01-9, 22.02, and 65.

The site which is rectangular with a frontage to High Street of 15.24 metres and depth 37.29 metres is occupied by a single storey weatherboard dwelling.

Opposite the site, on the north side of High Street, is a fuel storage and handling terminal operated by the Shell Company of Australia.

The Newport Railway station, shops, schools and public open space are in close proximity.

An unaccompanied site, and environs, inspection was made on 17 July 2012.

Southern Capital Corporation v Port Phillip CC [1999] VCAT 130 (30 June 1999); Hargreaves v Ballarat CC [2004] VCAT 980 (24 May 2004); Ports and Environs Controls (AC) [2010] PPV 115 (1 November 2010); Port Phillip Woollen Mills (AC) PPV 5310 May 2011; Sandbar Properties Pty Ltd v Maribyrnong CC (No 2) [2010 ] VCAT 678; Sunshine Investments Pty Ltd v Brimbank CC [2012] VCAT 979 (10 July 2012)

1. P2490/2011 is an application under Section 82 of the Planning and Environment Act 1987 by the Shell Company of Australia (Shell) to review the Responsible Authority's decision of 26 July 2011 to grant a permit allowing for the construction of three double storey dwellings opposite Shell's fuel storage facility at Newport. Shell contends there should be no increase in the number of dwellings in such close proximity to a Major Hazard Facility.
2. The part of the Newport Fuel Terminal operated by Shell is opposite the site, on the north side of High Street, it is listed as a Major Hazard Facility as defined by the Occupational Health and Safety Regulations 2007.
3. P2860/2011 is an application under Section 80 of the Planning and Environment Act 1987 to review conditions 1(c), 3 and 4. At the commencement of the hearing the Tribunal was advised the permit applicants and the Responsible Authority had reached agreement relating to the conditions and had resolved to delete conditions 3 and 4. The applicants for permit advised they no longer contested condition 1(c).
4. Having considered the matters put to us and informed by our inspection of the site and its environs, we consider that the key issues to be determined in this matter are:
   • Should the Environment Protection Authority's buffer distance requirements be considered?
   • Should a permit be issued to develop additional dwellings on a site in close proximity to a Major Hazard Facility?

Should the Environment Protection Authority's recommended buffer distance requirements be considered?

1. Shell's Newport Terminal has 40 storage tanks containing fuels, lubricants and solvents. The northern boundary of the review site lies approximately 59 metres from the closest bund wall surrounding the major tanks and around a further 6 metres from the closest fixed roof petroleum storage tank.
2. Clause 13.04-2 - Air Quality in the Hobsons Bay Planning Scheme, requires that, wherever possible, there is suitable separation between land uses that reduce amenity and sensitive land uses. Additionally, one of the strategies in Clause 17.02-1_, Industrial Land Development_, is to protect industrial activity from encroachment from activities that may adversely affect its viability and Clause 17.02-2, Design of industrial development, .requires that an adequate buffer distance between sensitive uses and offensive and dangerous industries be provided to ensure that residents are not affected by adverse environmental effects, nuisance or exposure to hazards.
3. The Environment Protection Authority's Recommended Buffer Distances for Industrial Residual Air Emissions, AQ 2/86 is a reference document for all of the above clauses. AQ2/86 reinforces the concept of reverse buffers by specifying that buffer distances should be implemented taking into considerations the need for preventing sensitive uses encroaching on industry as well as industry encroaching on sensitive uses.
4. The buffer distances given in AQ2/86 are to protect sensitive uses from residual air emissions which may occur due to extreme weather conditions, equipment failure or accidents, that is they are episodic and during normal operations the amenity of the air environment would be maintained. The buffer distances in AQ2/86 between a petroleum fuel storage facility and a sensitive use with fixed roof tanks is given as 300 metres, and for floating roofs it is 100 metres. We were told that there is a mix of fixed and floating roofed tanks at the Shell Newport Terminal with the closest tanks to the subject site, Tanks 27 and 28, having fixed roofs. The review site is well within the 300 metre buffer distance specified for fixed roof tanks and indeed is within the lesser buffer distance for a floating roof tank. When questioned Mr Negri said he was not aware of any air amenity or any other complaints in relation to the operation of the Newport Terminal.
5. The Responsible Authority, whilst not mentioning it in its planning report, had referred the application to EPA for comment. EPA's email response did not make any specific comments about this application but simply referred to the 300 metres buffer distances for fixed roof tanks given in AQ2/86. Ms Lunn submitted that the EPA is not a statutory referral authority for this application so its comments need not be considered.
6. Shell's Newport Terminal was established around 1915-16 and many of the High Street dwellings date to a similar time, well before modern planning and the concept of separating industry and sensitive uses were given consideration. Because of this historic context the AQ2/86 buffer distances are not being met and are not likely to be met for the foreseeable future.
7. Does this mean that the buffer distances close to an industry with potential residual air emissions should be disregarded when an application for a sensitive use is made? AQ2/86 contemplates this and recommends that where a new sensitive use development is proposed within the recommended buffer distance it should not proceed unless site-specific variation of the recommended distance is approved by EPA. We were not given any indication that EPA has approved a variation.
8. For the Responsible Authority to simply brush aside EPA's email because it is not strictly a statutory referral authority for this application is somewhat contemptuous, particularly as we note AQ2/86 is a referenced document within the planning scheme. We consider that in order to reconcile this historic planning anomaly weight should be accorded to the recommended buffer. Consideration could also be given to including an Overlay in the Hobsons Bay Planning Scheme to recognise that there may be restrictions on development within this area. We note a similar suggestion was made in the recent Tribunal decision Sunshine Investments Pty Ltd v Brimbank CC[2] where the Tribunal was grappling with a proposed development of 67 dwellings in close proximity to a landfill and quarry.
9. The Newport Terminal is also regarded as having state significance due to its importance to Victoria's economic development. By virtue of Clause 17.02-3, it is to be protected from inappropriate development and adequate buffer distances from sensitive uses maintained. This status further highlights the need to ensure, that the Newport Terminal can continue to operate in an already less than ideal situation and have to incur potential restrictions brought about by avoidable planning outcomes.

Should the permit be issued to build on the site near a Major Hazard Facility?

1. The Newport Terminal, as a place where large quantities of flammable materials on site, is classified under the Occupational Health and Safety Regulations 2007 as a Major Hazard Facility.
2. We were presented with three separate pieces of information that gives advice on land use planning near a Major Hazard Facility: a summary of the United Kingdom's Health and Safety Executive's Land Use Planning Advice Around Large - Scale Petrol Storage Sites; Shell's Safety Case which includes a Quantitative Risk Assessment of individual and societal risk at and around the Newport Terminal; and WorkSafe's Land use planning near a major hazard facility guidelines which included a map of Land use planning advisory areas for Newport Fuel Terminals.
3. While the quantitative risk assessment (QRA) in Shell's Safety Case and the summary of the United Kingdom's Land use planning advice contained useful information about risk near the Newport Terminal, WorkSafe's guidance advice was the most persuasive. WorkSafe's guidance advice has been informed by the work done in the UK and unlike Shell's QRA which had been prepared to guide Shell's operations, it has been prepared specifically to guide land use planning for the local context using the experience and expertise of Victoria's statutory authority for regulating Major Hazard Facilities.
4. WorkSafe's inner advisory area extends 185 metres from the boundary of the fuel storage tank bunded area and is an area that WorkSafe generally advises against any development except for low density industrial uses. The subject site is well within this inner planning advisory area. In preparing its guidance advice WorkSafe considers both individual and societal risk.
5. Mr Bird on behalf of Worksafe submitted as the proposed development is located sufficiently close to the Newport Terminal, should a major incident occur at the Newport Terminal there is a risk of fatality, serious injury or of not being able to respond to an emergency situation. He also submitted the granting of this permit may also set a precedent for significant future increases in exposure of people to risks to health and safety ... by future intensification of other residential land near the Newport fuel terminal.
6. As WorkSafe is not a referral authority for this development the permit application was informally referred to WorkSafe by the Responsible Authority. WorkSafe advised against this development due to its location in the inner planning advisory area however Council considered that it was not appropriate to refuse the application due to the small increase in density that is proposed. It was submitted by Ms Lunn that even if WorkSafe, and EPA were referral authorities in the Hobsons Bay Planning Scheme it was of the view that the development would still be approved as it meets other Hobson Bay planning objectives such as Clause 21.01-9 which directs how infill development in a heritage area will be achieved.
7. Mr Chessell also advanced the argument that the small increase in density from this development would have negligible effect on the overall societal risk posed by the Newport Terminal. This risk increase is even more marginal when it is considered that it is as of right to build a dwelling and a dependent persons unit on the subject site given it is located within the Residential 1 zone. Clause 22.01-9 of Hobsons Bay Planning Scheme specifically encourages infill development provided it is respectful of the heritage precinct and there are other recent examples of infill development nearby, for example at 77 Home Road and 100-112 Hall Street. We inspected these sites. We deduced that 100-112 Hall Street was developed well before the 2010 publication of the WorkSafe guidelines. The two townhouses currently being built at 77 Home Road are within WorkSafe's inner planning advisory area, although it appears from Hobson Bay records that the permit for this development was first granted in 2008 which is also before the WorkSafe guidelines were published.
8. Mr Brian Cooper, a risk expert considered the exposure risk at the site in the event of an accident at the Newport Terminal. He considered a large fire or a vapour cloud explosion from the Terminal could impact the site, although the likelihood of these events is low. However, he considered increasing the population density at the site would set a precedent which, if followed, could lead to an intolerable societal risk including greater difficulty evacuating during an emergency.
9. WorkSafe's Land use planning near a major hazard facility guidelines have been considered in several planning decisions including Sandbar Properties Pty Ltd v Maribyrnong CC[3], the Advisory Committees appointed to consider the Port Phillip Woollen Mills[4] and the Ports and Environs Controls[5]. These previous considerations of development near a major hazard facility were for large scale development and we consider to be of only marginal relevance when considering a small Residential 1 zone infill development.
10. In Sandbar the WorkSafe guidelines were only in draft form. The Tribunal stated: the planning scheme provides no guidance as to the appropriate planning approach to risks associated with Major Hazard Facilities. Nevertheless, we were referred to planning approaches adopted in the United Kingdom and some preliminary work being done by the Major Hazards Advisory Committee with WorkSafe in Victoria. We think that these examples are useful illustrations of how risks imposed by one land use on another more sensitive land use should be managed in a planning context.
11. In Sandbar the Tribunal affirmed the Responsible Authority's refusal to grant a permit for two, three-storey buildings for 66 dwellings in a Mixed Use Zone in close proximity to Mobil's Yarraville bulk fuel storage and distribution Terminal on the basis that 'there should be a buffer between new or a more intensive residential development and a Major Hazard Facility such as the Yarraville Terminal'. In reaching its decision the Tribunal was assisted by the EPA's AQ2/86 and the concept of a reverse buffer, as well as a policy within the Maribyrnong Planning Scheme identifying the 'need to provide adequate buffers between industry and major hazard facilities and residential areas'[6]. This policy has been updated since the Tribunal determination and now requires the Responsible Authority to seek, as appropriate, the advice of WorkSafe Victoria and has as a reference document the 2010 guidelines prepared by WorkSafe.
12. In a recent decision of the Tribunal in Sunshine Investments Pty Ltd v Brimbank CC [7] the Tribunal affirmed the decision of the Responsible Authority to refuse to grant a permit for 67 dwellings in a Residential 1 zone on the basis that locating a sensitive residential use in close proximity to a proposed landfill and existing quarry with the potential for gas migration was an inappropriate planning outcome. As in Sandbar the Tribunal in Sunshine Investments took account of the zoning of the land, with the use of the land for a dwelling being as of right, but focused on the intensity of the proposed development: 'the intensity of the development, over and above that which is permitted without a permit is especially relevant having regard to the site's context and in particular its proximity to an exhausted and un-rehabilitated quarry pit, currently used as a concrete batching plant, concrete and rock crushing and materials recycling facilities, and for which non-putrescible landfill is proposed'[8].
13. Mr Tweedie for Shell submitted that the development will increase the population exposed to low frequency but high consequence events that may occur at the Shell terminal and that is contrary to the State Planning Policy Framework and the Hobsons Bay Planning Scheme, in particular clause 22.02 which is to ensure that land use and development in the vicinity of core and secondary industrial areas does not adversely affect the viability of the established industry within the area.
14. Mr Tweedie submitted this is about the management of risk. Shell as a the manager of a Major Hazard Facility is required to ensure that the site operates to minimise risk, however there is always an element of residual risk and land use planning has a part to play in managing this residual risk. Minimising the residual risk or avoiding it where possible is a key management strategy. Avoiding risk is embodied in Clause 13: Planning should adopt a best practice environmental management and risk management approach which aims to avoid or minimise environmental degradation and hazards.
15. In considering the advice given by Worksafe and EPA not to support the development it was countered that there is a very marginal increased societal risk if the site was developed as proposed. Ultimately the decision that comes before the Tribunal is what was advanced by Mr Tweedie, the tyranny of small decisions, a concept that has been referred to in previous cases before the Tribunal[9]. The tyranny of small decisions is succinctly described in Southern Capital Corporation v Port Phillip[10] as:

This issue, as is often the case, relates to the problem of managing incremental change. That is, in implementing planning policies, any decision to stop further incremental changes beyond the current situation can appear unduly arbitrary, given that each step introduces only a small and seemingly inconsequential change from the preceding situation. By itself, of course, each decision may seem relatively inconsequential but, in combination, a series of small changes will eventually amount to something of considerable substance (sometimes referred to as the "tyranny of small decisions").

1. The Responsible Authority submitted the proposal meets all the requirements under the planning scheme and therefore should be approved. We consider there must be a balance in relation to a consideration of the various policies and just because a permit could be granted does not necessarily mean it should be granted.
2. We accept, as did the Tribunal in Sandbar, that 'risk is an aspect of amenity' and therefore careful consideration should be given to increasing density in close proximity to a Major Hazard Facility, even if the proposal is supported by way of the zoning provisions.
3. Sandbar and Sunshine Investments considered the increase in density of 66 and 67 dwellings to be unacceptable. In relation to this proposal we consider, unlike the Responsible Authority, that due to its extremely close proximity to the Major Hazard Facility an increase of even 2 dwellings is unacceptable.

Do any other matters warrant rejection of the proposal?

1. The existing mid-20th century dwelling on the subject site is located within the Hall Farm Estate Precinct within Heritage Overlay (HO11). Many of the other dwellings in High St are Edwardian and interwar buildings. The Halls Farm Precinct is described as:

Aesthetically, it is significant as a relatively intact area of representative housing predominately from the Edwardian and Interwar period. It is notable for its consistent character, which is derived from the weatherboard single storey detached houses often with a front verandah or porch, garden or front setback, some side setback, hip or gable roof forms clad in Marseilles pattern terra-cotta tile or corrugated iron and low timber or metal framed front fences.

1. The Responsible Authority's Heritage Advisor did not raise any issue regarding the demolition of the existing dwelling, given its non-contributory status. From our site inspection it seems that there is unlikely to be significant infill development proposed in the area, as a number of the existing dwellings in High Street are listed as contributory (69-73, 79, 83-87, 91 and 95-99).
2. The subject site is conveniently located close to rail, schools, shops and other conveniences and the policies within the Hobsons Bay Planning Scheme as noted generally support a residential infill development on this site. Clause 22.01-9 encourages infill development that reflects the heritage character of the area. Therefore in terms of the proposed three double storey dwellings, we have no issue with their design and they are generally considered to comply with the planning scheme provisions at clause 55.

1. We consider that to allow for an increase in the density of development on the subject land, within WorkSafe's inner planning advisory area and within the EPA's buffer distance would introduce a very small increased marginal societal risk.
2. We consider that based on the tyranny of small decisions it would, in the end, set a precedent for similar developments in the area and it would be irresponsible for us in the circumstances to approve the development, albeit with its resulting very small increase in population density. On this basis it is our conclusion that the site is unsuitable for medium density development. No permit should be granted.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] [2012] VCAT 979 (10 July 2012)

[3] [2010] VCAT 678

[5] [2010] PPV 115 (1 November 2010)

[6] Clause 22.02 Francis Street Mixed Use Policy - Maribyrnong Planning Scheme

[7] [2012] VCAT 979 (10 July 2012)

[8] Sunshine Investments Pty Ltd v Brimbank CC [2012] VCAT 979 (10 July 2012) at [47]

[9] Hargreaves v Ballarat CC [2004] VCAT 980 (24 May 2004); Southern Capital Corporation Pty Ltd v Port Phillip CC [1999] VCAT 130 (30 June 1999)

[10] [1999] VCAT 130 (30 June 1999) at pg 11