1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:

1. The decision of the Responsible Authority is set aside.
2. In permit application P0177/11 no permit is granted.

Ms Louise Hicks of counsel, instructed by Ellen Hogan & Associates. She called the following witnesses:

• Mr Douglas Growcott, an acoustic engineer from Watson Moss Growcott acoustics Pty Ltd.
• Mrs Sharyn Simpkin.

Mr Daniel Bowden, a town planner from Song Bowden Planning Pty Ltd.

Mr Phil Taylor of Mansfield Consulting Services. He called the following witness:

• Mr Graeme Campbell, an acoustic consultant from SLR.

Retrospective approval for the use and development of the land for a sawmill.

Objection to the decision to grant a permit pursuant to Section 82 Planning and Environment Act 1987.

Zone and Overlays applying under the Mansfield Planning Scheme

Environmental Significance Overlay (Clause 42.01 and Schedule 2)

Planning permissions required under the Mansfield Planning Scheme

Use of the land for a rural industry in a Farming Zone (sawmill)(Clause 35.07-1).

Development and works on land in a Farming Zone (Clause 35.07-4) and subject to an Environmental Significance Overlay (Clause 42.01-2).

1. Mr Bucholz[1] owns and operates a sawmill at 285 Barwite Road, Barwite. He has done so for some years, however without the benefit of a planning permit, as required under the Mansfield Planning Scheme. He has sought retrospective planning approval for his operation from the Mansfield Shire Council. The Council decided to grant a permit and issued a notice of decision on 17 May 2012. Mr and Mrs Simpkin object to this decision and seek a review by the Tribunal.
2. Mr and Mrs Simpkins live on a rural property of 20 hectares opposite Mr Bucholz's sawmill. Mr and Mrs Simpkin say that as this business has grown from an initial part time supply of firewood into a full scale sawmill, they have been subject to progressively more and unacceptable levels of noise, dust and odour. They also consider that the access arrangements as called for under the proposed permit are unworkable and do not address the safety issues arising from the location of the access and size of B-double trucks entering and leaving the sawmill.
3. In response to these issues, the Council and Mr Bucholz rely on actions already undertaken to reduce dust from the site plus proposed acoustic wall treatments to reduce noise impacts and alterations to access arrangements. The Council and Mr Bucholz are of the view that the permit conditions are sufficient to address the concerns of the Simpkins and provide a level of amenity acceptable within a Farming Zone.
4. It falls upon the Tribunal to decide whether the layout and operation of this sawmill as would be modified by the proposed permit conditions would acceptably address amenity, access and environmental issues as raised and addressed by the parties.
5. In arriving at our decision, we have considered the written and oral submissions of the parties, the evidence of the acoustic experts, evidence of Mrs Simpkin and the matters required to be considered under the Planning Scheme and Planning and Environment Act 1987.[2] Having considered these matters, we set out in these reasons our response to the substantive issues about:
   • The site context and amenity considerations in a Farming Zone;
   • The assessment and potential to address noise impacts;
   • Other amenity impacts (dust and odour); and
   • Access arrangements for the sawmill.

1. Before turning to the substantive issues of this proceeding, we will here address two matters that arise from the submissions made on behalf of the Simpkins and Mr Bucholz.
2. The first of these matters is whether or not the sawmill is operating under existing use rights. Submissions made for Mr Bucholz sought to take us to his initial use of a portable saw mill arrangement since 1994 or 1995 and that because of this it may be said that his land has been used as a sawmill from that point in time.
3. We make no comment as to the merit of such a claim. We observe that at no time in these proceedings or indeed when Mr Bucholz was first approached by the Council about his operation has he sought to rely on existing use rights as a defence to his operation. To raise the possibility of some existing use right very late in these proceedings, including a directions hearing, leads us to repeat here what we ruled in the hearing, that the existing use rights is not a matter for consideration by this Tribunal.
4. Mr Bucholz has made an application for a planning permit. The Council has decided to grant such a permit. Mr and Mrs Simpkin seek a review of that decision. It is the duty of the Tribunal in this proceeding to now stand in the shoes of the Responsible Authority and consider afresh the application for a permit by Mr Bucholz. That is the task before us and that is how we have proceeded.

1. The sawmill site and surrounds are subject to the requirements of an Environmental Significance Overlay and schedule 2 of that overlay. The primary purpose of the ESO2 is to address water quality issues of the declared water supply catchment [3]of Lake Nillahcootie. A secondary purpose is to address the visual amenity of the catchment due in part to its tourism values to the region.
2. Clause 42.01-2 sets out that:

• Construct a building or construct or carry out works. This does not apply if a schedule to this overlay specifically states that a permit is not required.

1. Clause 3 of Schedule 2 sets out permit requirements and specifically addresses when a referral is required to the relevant water authority under section 55 of the Planning and Environment Act 1987 and when exemptions to a permit apply.
2. The proposal before us does not fall within any of the listed works or forms of development that are exempt from a permit.
3. Thus we disagree with the Council and find that the issues of water quality impact and for that matter, visual amenity and landscape issues, are live and relevant to this application by way of this site's location within the Lake Nillahcootie catchment and the ESO that applies to this land and to this proposal.
4. Ms Hicks argues that the not only is the ESO relevant but that the permit application should have been referred to the relevant water authority, Goulburn Murray Water. She refers to the ESO and the requirements under clause 66.02-5 to support this view.
5. As drawn to our attention by Mr Bowden, there are specific triggers for a referral to an application under the ESO. These are set out under Clause 3 of Schedule 2 of the ESO and repeated under the schedule to clause 66.02-4. We agree with the Council that none of these triggers are met and so a section 55 referral is not mandatory. We note further that while section 66.02-5 also requires a referral for applications for use and development within a declared catchment, the specific requirements of the ESO and the schedule to 66.04 address referrals for specified catchments, including Lake Nillahcootie. It is trite law that administratively the specific overrides the general. Thus we do not see that the 66.02-5 overrides the specific circumstances of when a section 55 referral is not required.
6. Not withstanding that no section 55 referral is required however it is not a reason to give notice by way of section 52 to a relevant authority and seek its views about the application. Nor does it mean that the requirements of the relevant planning control need not be addressed by a responsible authority.
7. The ESO and schedule 2 calls for a consideration of 'Guidelines for the Protection of Water Quality', 'The Rural Land Study and General Guidelines for Subdivision, Buildings and Works in Rural Areas' and how the development addresses water quality protection matters and 'the maintenance and improvement of the visual quality of the area as viewed from roads and private property'.
8. In anticipation of a future application for the sawmill following on from our decision in this application, it would be our expectation that such matters would be considered and addressed by a revised proposal and in the decision making process of the Council.

1. The substantive issue in this application is about amenity. Mr and Mrs Simpkin complain of impacts mainly from the noise but also dust and odour from the sawmill activities. They say that over time, as the sawmill operation has expanded, there has been increasing impacts, particularly over the last twelve months or so. The increase in activity and impacts led the Simpkins to make a complaint to the Council and EPA where upon council officers identified that the sawmill was operating without planning permission. Mr Bucholz's permit application arises from these circumstances.
2. The impacts from blown sawdust and odour from the milling of green pine as well as being annoying, give rise to concerns about the impact of sawdust and odour on their health and related to this impact on the quality of their drinking water from roof runoff.
3. They consider that the sawmill activities have grown to a point where the operation is too large for the area currently occupied on Mr Bucholz's land. They do not contest that the Farming Zone is an appropriate zone for the operation of a sawmill or that their amenity expectations should be the same as those in a residential zones. They agree that the Farming Zone is a working agricultural zone, citing the fact that they themselves are rural producers and recognise the amenity impacts from such activity. What they seek is a reasonable level of amenity consistent with a farming environment and not the daily intrusion of the sawmill most particularly the level of noise but also dust and odour.
4. As is accepted by the Simpkins and put by the Council the primary purpose of the Farming Zone is about ensuring land is available for agriculture. Other primary or resource development industries can also be expected to occur within this zone. To that end the purposes of the zone and many of the decision guidelines promote a primacy of agricultural uses over other uses including that of a dwelling.[4] Various divisions of the Tribunal have reinforced a view that the Farming Zone is a working zone. As such, people living in such areas will be subject to noise, odour, dust and other amenity impacts arising from agricultural and other primary production uses of land.[5] Those seeking rural residential amenity should direct their interests toward a rural living or similar zone.
5. Decision guidelines for use of the land for a dwelling in the Farming Zone are not directed toward protecting residential amenity but rather ensuring that the dwelling does not prevent the ongoing agricultural use of adjoining land.
6. Notwithstanding the above however, there are guidelines that address issues of potential impacts between land uses, development and the need to consider possible land use conflicts. i.e. 'whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses'.[6]
7. None of this is fundamentally in dispute between the parties. What is at the heart of this application is to what level a non-agricultural use can impinge on the amenity of dwelling within a farming zone. The question is about what is an acceptable or unacceptable level of amenity impact on a dwelling in a farming zone?
8. In response to such a question, we find it difficult to make any broad statements about what constitutes acceptable Farming Zone amenity. Each matter must turn on the facts and merit of a proposal and its context. Our reasons here are confined to the particular circumstances of this location and the amenity issues in issue, predominantly noise but also odour, and the guidance available under the scheme, including the Noise for Industry in Regional Victoria guidelines (the NIRV guidelines).[7]
9. In addressing this question of amenity, we consider that from a land use point of view, placing a saw mill in a farming zone could generally be supported subject to amenity and other environmental management outcomes. Such a use usually requires a large expanse of land to enable sufficient room for buffers from noise, dust and odour and smoke emissions (where burning occurs on-site), should be accessible for large vehicles including trucks delivering raw wood and loading timber product, and large areas to accommodate stockpiles of supplies and finished product. Large land holdings in a farming zone present such an opportunity. Mr Bucholz's property is slightly less than seven hectares in area.
10. It is therefore of little surprise that as a land use, this rural industry is permissible in a farming zone. However as rightly pointed out by Ms Hicks, being permitted doesn't mean a permit will or should be granted. A proposal needs to meet a range of planning tests and outcomes.

1. It is not disputed that a clear planning outcomes is to ensure that noise levels do not present an unreasonable impact on amenity. It is state policy that planning decisions are to 'assist the control of noise effects on sensitive land uses'.[8] Policy strategy is to:

Ensure that development is not prejudiced and community amenity is not reduced by noise emissions, using a range of building design, urban design and land use separation techniques as appropriate to the land use functions and character of the area.

1. Noise monitoring by Mr Growcott and Mr Campbell (discussed later in these reasons) show periods of very low levels background noise in this location. Put another way, the locality has, apart from the timber mill, a very quite acoustic soundscape. Mr Growcott measured levels as low as 23 dB(A) during a period when the sawmill was not operating. However typical background levels of around 35 dB(A) are indicated by both consultants with occasional punctuations of louder noise from bird call and passing traffic on Barwite Road of 40, 50 and at time 60 dB(A) or more.
2. The quietness of the area serves only to emphasis how noise from mill operations may be thought to be intrusive. However, while we acknowledge the potentially quiet acoustic character of the area observed by Mr Growcott, the objective and relevant policy test of acoustic amenity for industry uses in regional Victoria is to be guided by the NIRV guidelines. In meeting these guidelines we acknowledge that the sawmill noises may still be audible. Being audible does not mean being a nuisance however. In meeting the NIRV derived levels, the noise generated by the sawmill would blend into the background rather than be a continual dominating source of noise impact and annoyance. In addition, we recognise that in the test of acceptability, we must apply what is reasonable for the average person. Acute sensitivities, such as those referred to by Mrs Simpkin, while unfortunate are not the test we are required to apply in cases such as this.

1. As part of the application process, Mr Bucholz commissioned a noise assessment by SLR consultants. This assessment was undertaken by Mr Campbell and now forms the basis of his expert evidence in this proceeding.
2. Mr Campbell tested the operation of a range of sawmill activities, including the combined use of the two, as then Lucas portable saw benches[9], a small chainsaw and a small loader and the individual operation of a large loader. His results show that the combined activities generate a noise level of 45 d)B(A), one dB(A) below the NIRV guideline level of 46 dB(A), while the loader operation, allowing for tonal penalties, would be at 47 dB(A), one unit above the guideline level.
3. The combined noise level of the two saw benches, large and small chain saw operations and two loaders would be 53 dB(A), or 7 dB(A) over the 46 dB(A) guideline level. If a light breeze was to be blowing from the sawmill site toward the Simpkin house, Mr Campbell advises that an additional penalty of 3 dB(A) would be added, bringing the potential noise level to 56 dB(A).
4. In summary Mr Campbell's assessment identifies the possibility of noise levels emanating from the sawmill operations that would exceed the recommended levels under the NIRV guidelines.
5. To address these exceedances, Mr Campbell recommends the construction of an acoustic fence of four metres height for a length of 40m along the Barwite Road frontage. The wall would need to extend an unspecified distance back up into the site at its eastern end (the return portion) and have a roof over it to from an enclosure. The trimming of finished wood product using the large chain saw would then occur behind this barrier and under this enclosure.
6. Mr Campbell's evidence is that the barrier would also assist in reducing the noise levels of the saw benches operations.
7. Mr Campbell uses his professional experience to estimate that a reduction of 12 dB(A) could be achieved with a properly constructed barrier. A properly constructed barrier will need to have overlaps of any gaps and extend a suitable distance for the return portion. He has not designed this return portion. Barrier and enclosure roofing materials would need to have the appropriate acoustic absorbing or deflecting properties. His recommendations are based on use of standard wood or fibre based products.
8. Mr Bucholz proposes the use of large hay bales to construct the acoustic barrier. Mr Campbell is not fully confident that the proposed use of large hay bales will achieve the full 12 dB(A) reduction.
9. Mr Growcott, called to give evidence for the Simpkins, takes little issue with the assessment process or application of the NIRV guidelines by Mr Campbell. He does however have strong criticism of the proposed barrier enclosure and lack of recommendations for other sources of noise.
10. Both experts agree that if the operation was moved to the rear of Mr Bucholz's property, the increased distance would reduce noise levels at the Simpkin dwelling by 6 dB(A), thereby requiring a barrier to achieve only a 4 dB(A) reduction to achieve compliance with the NIRV guideline levels. Both experts have a higher level of confidence that a barrier system could achieve this lower reduction. Various other reduction options were suggested including totally enclosing the saw bench operations in a basic shed with minimal openings, which Mr Growcott indicated would reduce noise levels by 10-15dB(A).
11. Mr Campbell and Mr Taylor advise that Mr Bucholz resists a new layout for his sawmill for operational and costs reasons as well it is claimed due to the back part of his property being subject to poor drainage. We were told that enclosing the saw benches would be impractical because of the way the saw benches were operated. We address these points later in our reasons.
12. Mr Taylor advised that Mr Bucholz had replaced one of the saw benches with a new diesel powered model, which it was asserted would lower noise levels. However a new loader has been purchased and Mr Bucholz would address the recommended use of noise reduction mufflers. None of these changes however have been subject to retesting for noise levels.

Why have we found the proposed acoustic response to be unacceptable?

1. As a starting point in considering this evidence and the submissions of the parties, we have considered first what should be a reasonable amenity expectation for the Simpkin residence in this Farming Zone. In doing so we acknowledge that Mr Bucholz was prepared to accept permit conditions limiting his sawmill operations to 7:00am to 5:30pm on weekdays[10] and that there be no new equipment used in the operations be allowed unless with the consent of the responsible authority.
2. Given the potential for noise levels at the Simpkin residence to be anywhere from 47 dB(A) up to 56 dB(A), the acoustic evidence indicates that without a proper planning response, the sawmill's operation presents a substantive risk of unreasonable amenity impact. The noise levels would be approximately 10 to 20 dB(A) above higher background noise levels measured by both consultants and be some 7 dB(A) above the NIRV guideline criteria and potentially under some conditions almost 10 dB(A) higher.
3. The evidence of Mr Campbell is that at 3 dB(A), the increase in sound level is noticeable and at around 7-10dB(A) the perceived noise level is almost double.
4. Ultimately such conclusions about the risk of noise amenity impacts are not contested between the acoustic experts. The substantial question that is before us then is whether we can be sufficiently confident that the proposed barrier/enclosure system designed by Mr Campbell and proposed to be built with hay bales by Mr Bucholz will address this risk.
5. The support of both experts for the barrier is qualified. Mr Growcott is particularly critical of the lack of quantitative assessment of the barrier's proposed design. He has concerns about the lack of detail about 'the return' inside the sawmill property and its practicality. He highlights that this portion of the barrier conflicts with the proposed parking area, possible access into the site and potential for gaps within the barrier system. Gaps at this location are said by Mr Growcott to afford an opportunity to refract sound around the corners of the barrier and direct noise toward the Simpkin's residence, not away from it. Mr Growcott points out that a portion of the front barrier also conflicts with the proposed visitor parking.
6. Neither Mr Growcott or Mr Campbell express confidence for the use of large hay bales to form the barrier. Both agree that post construction testing would be required and any short comings would need to be addressed by further design or other response.
7. As we have noted, the acoustic experts agree about the benefits of relocating the operations further from the interface of the Simpkin's property. Mr Campbell and the submissions of Mr Taylor confirm also Mr Bucholz's resistance to this remodelling of his operation.
8. It occurs to us however that while Mr Bucholz resists such a beneficial re-layout of his operation he is prepared to take necessary steps to lease and remodel access into his property to accommodate B-double and other truck movements.
9. It is also apparent to us that this sawmill operation has evolved in a fashion that has met Mr Bucholz's needs without due regard to what off-site impacts may be occurring. The beginning of his wood splitting and other minor milling operations appear to have occurred further into his property. However as more room has been required to accommodate the two saw benches, receiving and stacking of incoming materials and final trimming, storage and loading of product, the operation has moved further toward Barwite Road and open areas of his property.
10. We can appreciate how such development has occurred. It is readily apparent that there are many benefits in using the areas now established for these operations. However the unfortunate side affect has been to locate the noisy and most intrusive operations progressively closer and closer to the Simpkin's dwelling.
11. In affect Mr Bucholz is victim to his own success based on a somewhat haphazard planning process.
12. The final step in this process would be the somewhat pragmatic response to address the noise by building a barrier to Mr Bucholz's property, along the Barwite Road frontage. A barrier that would be at least 40m long and at least four metres high.
13. We find such a response to be akin to putting an ambulance at the bottom of the cliff instead of putting a fence at the top. It has all the appearances to us of being a bandaid response and does not support an orderly planning outcome for the following reasons.
14. The main source of the noise is from a number of operations:
    • Primarily the trimming of finished products using a chain saw;
    • Milling operations in an open air shelter that utilises one, and often two saw benches, that generate engine noise and higher frequency saw noises, operation of fork lift/loaders and trimming with chain saws;
    • Delivery and movement of logs and similar raw material (banging and engine noise).
15. The barrier system is primarily designed to address one of these sources, the wood trimming of finished product. Mr Campbell's evidence is that there may be benefit to other noise sources. His lack of confidence over this aspect and indeed the untested capacity of the barrier does not give us the necessary confidence to agree to this remedy. It clearly is 'a suck and see' approach which to our mind reinforces the lack of forethought into the progressive development of this operation.
16. We are similarly not persuaded that the proposed use of hay bales is appropriate. The acoustic experts cannot express a satisfactory degree of confidence in the use of hay bales achieving the target levels of noise reduction. We also hold concerns about longevity of such material and the wisdom of using hay bales given the fire risks they present from self combustion, the chain saw operations occurring behind it as well as in the event of a site fire or bushfire.
17. If we were of a mind to accept a barrier of this size at this location it would only be on the basis that it was properly constructed of long lasting, appropriately fire resistant/retardant materials with the necessary and proven acoustic properties needed to reduce the noise levels at the Simpkin residence.
18. It follows that the benefit of revising the sawmill operations layout, while having a cost to Mr Bucholz may well also have a benefit in reducing the barrier requirements. We have however little evidence to base this on, which exemplifies the lack of strategic thinking that has gone into the evolution of this sawmill and the subsequent permit application. In terms of the resistance of Mr Bucholz to reconfigure his layout, we observe that the saw benches are portable and many of the other operations, such a product trimming, can be readily relocated. While moving the saw bench shelter would be a cost impost as would some relaying of works areas, we are not persuaded that on balance the relocation of his operations should not occur.

1. The Simpkins raise concerns about the emission of smoke, dust and odour from the sawmill operations. Odour is said to be an issue when green pine is milled. Dust is said to arise from the stockpiles and loading of sawdust on the site while burning of waste generated smoke.
2. Since inspections by the Council and the application made for the permit, Mr Bucholz has taken steps to address smoke and dust. Waste product, be it wood off-cuts, shavings or sawdust are collected and transported off-site for recycling. This is proposed to be continued if the sawmill is permitted.
3. We recognise the steps taken by Mr Bucholz to address these issues, although we also recognise that the material and evidence of Mrs Simpkin indicate that volume of sawdust stored on the site is inextricably linked to the regularity of pickup by the recycling agent. Currently this is said to occur at least once every ten days. Evidence suggests this may not always have been the case.
4. We would support the approach of regular pickup and off-site re-use of sawdust and other wood wastes as appropriate steps to address possible off-site impacts. On-site storage of sawdust during pickup periods needs to be addressed however so that it does not form a source of dust, particularly over drier periods. A practical and readily available solution seems to us to be the use of covered skips to store the sawdust until pickup. Whatever the solution, improved materials handling is required and we consider can be readily implemented.
5. We observe however that the proximity of the operations that generate the sawdust and result in sawdust being stored in an uncontained manner close to the Simpkin's dwelling again exemplify why this operation should move further away.
6. The Environment Protection Authority's Recommended Buffer Distances for Industrial Residual Air Emissions[11] recommends a buffer of 300m for sawmills to deal with fugitive emissions that impact on air quality. The current operation is well inside this recommended distance and the reported impacts from odour and dust by the Simpkins support that the lesser distance of approximately 150m to the their dwelling is insufficient.
7. We acknowledge Mrs Simpkin's concerns about odour. It seems to us however that this issue would similarly be dealt with by a re-organising of the sawmills layout. We are not persuaded however that odour from freshly milled timber, while of an occasional occurrence would of itself be sufficient reason to require such a response.

1. The visual and landscape impacts of the proposed noise barrier is a matter that we took up with the Council and was not one pursued by the Simpkins. It arises from our consideration of the Council's response to our questions about the size and extent of the barrier within a rural landscape.
2. We have had regard to the emphasis in local policy to protect landscape values across the Shire to support amenity and tourism activity.[12] While we recognise that this location appears to not be in a landscape of 'high level visual amenity'[13] and is not subject to a significant landscape overlay, the MSS sets out that across the Shire:

Scenic value of the foothills, valleys and cleared grazing country is a characteristic of the district and of intrinsic importance to the landscape and requires careful management of development.

1. To us the height, length and obvious visual intrusion of the proposed acoustic barrier would seem a poor landscape outcome that is counter to the MSS and other local policy objectives. These conclusions add weight against this proposed response. Even if we had a mind to accept the proposed extent of the barrier to address the noise impacts, we are not persuaded that constructing a 40m long four metre high wall along the Barwite Road frontage is a good and orderly landscape planning outcome.

1. Council submits that the current access arrangement into the site, particularly for the large B-double transporters is inadequate and unsafe. The combination of large vehicles entering the site at the south-west corner having to swing across the road and a central ridge across Barwite Road reducing sight lines is unsafe. The Notice of Decision contains a condition to remove this access and reconfigure the central access that is located on the high point of the road, to accommodate the needs of the large transport vehicles. Alternatively, new access that is to the satisfaction of the Council can be proposed.
2. The Simpkins similarly raise issues with the south-west access but also submit that the re-configuration of the central access is unlikely to work given the grade of the access from the road into the site is too steep for manoeuvring B-doubles. Mrs Simpkin's evidence, supported by video recordings, highlights the narrow nature of this portion of the road formed by the cutting into the ridge and the presence of a power pole. It is her view that the widening of the road required to accommodate the truck movements combined with the grade issues means that functional and safe access will not be possible.
3. Mr Bucholz has sought to address the issues raised in the Simpkin's grounds by proposing alternative access. Tabled plans indicate an alternative route from adjoining land by agreement with his neighbour that it is said would address sight lines, safety and road works necessary to accommodate B-double and other large vehicle access.
4. While we acknowledge that such an alternative access arrangement may be possible, we again see this response as another example of little strategic thought going into the development of this site and the subsequent permit application to address what we find to be key planning approval issues. However we have no supporting information or testing of this vehicle access or information about what roadside vegetation may be impacted by this access. Also this arrangement may require consequential reconfiguration of the sawmill operations which may affect the efficacy of the acoustic barrier. It may also support the relocation of the operation further from Barwite Road and hence the Simpkin residence.

1. We accept that Mr Bucholz's sawmill business is supported by planning policy on many levels. The submissions from Mr Taylor and the Council highlight the economic benefits to the community, the support it provides to the local agricultural activity and it is a form of sustainable use of natural resource, milling what would be waste timber into posts and other products.
2. We find that there is capacity for the operation to occur on his property with suitable measures to control off-site amenity and other impacts, particularly to water quality. However, the acoustic evidence, the evidence of Mrs Simpkin and the material tabled in this proceeding leads us to conclude that the proposed configuration of the operations is insufficient to address potential amenity impacts. In particular we are not persuaded that the proposed acoustic barrier is sufficient to address identified noise impacts. Similarly we find the dust and odour impacts to not be sufficiently addressed.
3. We recognise that this is a retrospective permit application and Mr Bucholz wishes to continue his business. We do not discount the impact of our decision. However we find that what is required, not withstanding Mr Bucholz's reluctance to do so, is a reconfiguration of the site to move noise and other adverse amenity sources away from the Simpkin residence in order to provide a sufficient buffer distance and reduce the reliance on what would be a large and obtrusive acoustic barrier.
4. A revised proposal is required.
5. For these and the reasons we have given, it is our conclusion that the decision of the Responsible Authority should be set aside and direct that no permit be granted under this permit application.

[1] The permit application was originally made in the name of Mr Phil Taylor on behalf of Mr Bucholz. We have amended the application to reflect Mr Bucholz as the permit applicant.

[2] While we have considered all this material we do not recite all of the contents in these reasons. All tabled materials is retained on the Tribunal's file.

[3] Declared pursuant to the Catchment and Land Protection Act 1994 and listed in schedule 5 of that act

[5] See for example Rolfe v Surf Coast SC [2008] VCAT 349, Ward v Baw Baw SC & Ors [2010] VCAT 1533; Perry v Hepburn SC [2007] VCAT 1309

[7] Publication 1411, October 2011, Environment Protection Authority.

[9] One Lucas portable saw bench has been replaced with a diesel powered Mahoe portable saw bench.

[10] With deliveries and pickups for the sawmill limited to 7:30am and 5pm Monday to Friday.

[11] Publication AQ2/86, July 1990; A guideline referred to and required to be considered under Clause 13.04-2.

[13] Clause 22.04. We note here that while referring to such landscapes, nothing the local planning policies or MSS sets out these areas. In the absence of such guidance we take the application of Significant Landscape Overlays to guide where such areas may be.