Before the use and development commences amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance wit the plans submitted with the application but modified to show:

(i) The deletion of the green waste disposal area and steel storage area.

(ii) Designation of finished surface levels within the site.

(iii) The maximum building height of the shed containing the recycle bins at 4.5m to the roof ridge.

(iv) The designation of the waste oil and battery bunded area to be of concrete or steel.

(vi) The delineation of the extent of the concrete bin pads.

(vii) The designation of the extent of the sealed entry road into the site.

(viii) Details of the retaining wall design adjoining the putrescible, steel and green waste bins.

B Condition 1 to be numbered Condition 2 and the subsequent conditions to be re-numbered accordingly.

C. The insertion of the following new conditions:

(a) The rehabilitation of the existing landfill site in accordance with the Mt Egerton Land Fill Closure and Rehabilitation Plan prepared for the Moorabool Shire Council by H.L.A. Envirosciences Pty Ltd.

(b) The engineering details of the stormwater management for the site including the retarding basin to the satisfaction of the Responsible Authority.

(c) Commercial waste, industrial waste or building materials shall not be accepted onto the site.

(d) Mulching and composting shall not be carried out on site.

(e) Private vehicles delivering waste to the site must not when loaded exceed five tonnes in weight.

(f) Detailed engineering drawings of the proposed retaining walls and bin pad construction shall be provided to the Responsible Authority for their approval. When approved these plans shall form part of the planning permit.

(g) The Shire shall convene an advisory committee consisting of up to four local residents. The Council's Works Manager and a member of the Council. The committee to meet quarterly or at other times with the agreement of the members.

D. The following words added to Condition 6, Condition 7 and Condition 8 as renumbered:

The works to be generally in accordance with the survey plans of Stateline Surveying dated November 05.

9 am to 5 pm Monday to Friday - for the purpose of removal of refuse by authorised persons.

Mr Kevin Spencer, Mr Rudolf Kaspersz, Mr Graeme Yellard and Mr Norman McKinnon

Ms Christine Cahill and Ms Carmel Hunter and Ms Susan Thompson on behalf of the Mt Egerton Community Development Association Incorporated

1 This was an application by Mr Spencer and others regarding a decision by the part of the Responsible Authority to grant a permit for a waste transfer station on the subject land. Mr Spencer's objections were firstly that the proposed application was a repeat appeal being identical to a previous application the granting of which by the Responsible Authority was overtured at Tribunal hearing P1870/2005 on 20 October 2005 and therefore legally barred.

2 The Responsible Authority was taken by surprise by the legal issue raised by Mr Spencer and was granted leave to respond in writing to the Tribunal within 10 working days. This division of the Tribunal on receiving the response from the Responsible Authority referred the legal issue to a legal member of the Tribunal whose ruling is appended to this determination.

3 The planning issues raised by the Mr Spencer and the other objectors centred on need, the appropriateness of the location for the use, the impact on the amenity of the local neighbourhood, access and egress, the failure of the proposal to comply with the buffer threshold distance contained within the Planning Scheme for the use and concerns about the rehabilitation of the tip site.

4 The previous application for transfer station on the site was heard by this division of the Tribunal. At that time the Tribunal stated as follows:

The Tribunal is of the view that a permit should not issue for the proposed transfer station at this time. The Tribunal is not satisfied that there is any need for this facility on this site or that appropriate assessment had been made with respect to the suitability of this site in the overall waste management activities of the Shire and of the wider waste management region. The composition of the waste stream that at present comes into the site was not made clear at the hearing nor was the nature of the waste stream that would be expected as a result of the proposal. I was not for example clear whether the facility was for local residents or for residents of the Shire of Moorabool as a whole or whether it would be limited to private individuals or made available for the use of commercial operators by the Shire itself.

5 The Tribunal at that time accepted hat the site had existing use rights and that the proposal would be potentially less detrimental than the existing use but at that time accepted that the EPA had given notice that the tip should be closed.

6 The Tribunal adopts its previous description of the site and surrounding area:

The site is located on the corner of the Yendon-Egerton and Ballan-Egerton Road in Mt Egerton. Council were of the view that the site had previously been a quarry it would however appear that it was a mining site that had had some material quarried out of it by the Shire post mining activity ceasing. The site itself has an area of some 2.97 hectares and has been used as a refuse tip. The site is fenced with a cyclone fence and there is some mature vegetation located around the perimeter and some regrowth within the site itself.

Land immediately to the north and west of the subject land is residential with the land to the east and a south lying within the Rural Zone and being generally well vegetated. The two roads bounding the site are sealed and relatively narrow particularly the Ballan-Egerton Road which is a Category 2 Road finished to a rural standard.

7 The proposal is for the establishment of a refuse transfer station on the subject site to replace the existing landfill. The transfer station is to operate in accordance with Eco Recycle Victoria's Guide to Best Practice at Transfer Stations. Eco Recycle is now contained within Sustainability Victoria. Sustainability Victoria have a policy to develop a transfer station network within Victoria to reduce the amount of material being discharged to landfill.

8 The transfer station will collect:

•

Putrescible wastes which will be collected in a lockable bin, such waste being transported from the site on a weekly basis;

•

Green waste and steel which will similarly be collected in lockable bins;

•

Waste oil and batteries will be collected and contained within concrete or steel bunded; and

•

Recyclable materials such as paper, cardboard, aluminium and tyres.

9 The oil and battery bunds and the recyclables will be contained within a shelter shed style building enclosed on three sides.

10 The application plans showed a green waste collection area and a steel collection area. The Responsible Authority informed the Tribunal that these were to be deleted from the plan. No asbestos, commercial or industrial waste will be accepted at the facility and the site will be supervised at all times during opening hours.

11 The primary purpose of the facility is to provide for the needs of local residents in this western section of the Shire. Visitors attending the facility will pass by a gatehouse where their load will be inspected and fees taken. They will then proceed into the site to place the materials in the appropriate receptacle. The putrescible steel and green waste bins will be located on concrete slabs below the level of the vehicle access platform thereby facilitating easy placement of materials into the bins.

12 The site area will be fenced with a 1.8m high chain mesh fence with a 45o crank to both provide security and trap airborne litter. It is intended that the facility will only be open for the disposal of waste on Saturdays and Sundays initially between 12 noon and 5.00 pm, however the conditions placed on the Notice of Decision allow for the expansion of these hours from 9.00 am to 5.00 pm.

13 Collected materials will be removed from the site at other times. The condition on the Notice of Decision to Grant a Permit seems to restrict removal times to 9.00 am to 5.00 pm Monday to Tuesday. Given that the putrescible waste material will be removed from the site probably on one occasion per week and the other bins and recyclables monthly or bi-monthly, there would appear to be no need for a restriction on the day, that pick-up is allowed.

14 It should also be noted that any change in the days and hours over and above those contained within any permit that might issue would need a further application for permit to be made on the part of the Council.

15 The proposal also includes a requirement to improve and seal the entry to the site and to upgrade and widen the Ballan-Egerton Road adjoining the site, in particular to allow for a turning lane. A landscape plan has also been provide as part of the application. Landscaping will improve the amenity of the site in general and screen the activities on the land from adjoining roads and residences in the vicinity.

16 The site is advantaged by being set within a former mine/quarry site and will have levels after the tip site has been rehabilitated some 6 or 7m lower than the Yendon-Egerton Road and, although at grade the entrance to the site also set down from the Ballan-Egerton Road. In addition the layout of the site allows for some 20m of planted buffer around the whole perimeter of the land.

17 Conditions on permit require the operation of the facility to be in accord with the Eco Recycle document, Best Practice for Transfer Stations and the Environmental Improvement Management Plan entitled Mt Egerton Transfer Station 2006 also prepared by Eco Recycle Victoria.

18 Council was of the view that a consultative advisory committee should be set up which would comprise of at least three members of the community together with a ward councillor and council officer. An advertisement requesting expressions of interest for serving on this committee had already been published locally.

19 As has already been mentioned there was a previous determination of the Tribunal to refuse an application for a transfer station to be located on the site The Tribunal at that time was not satisfied either with the need for the facility or the nature and source of the waste stream coming into the site at present and the waste intended to be received under the development proposed. These matters are addressed in the present proposal.

20 I find that the Council has been specific in this application about the nature of the waste that will be received at the site. In particular, commercial or industrial waste and building materials will be prohibited. The objectors quoted examples of industrial material being observed to be dumped in the tip at present. There may well have been occasions in the past where the control on the material dumped on the land was lax. It is however my view that the level of control in the future will be greater given the separation of materials on the land and level of inspection of received loads and transferred loads to match a specific waste description.

21 It was also put to me that Council had permitted contaminated soil to be used as cover material for the tip without the requisite permission from the EPA. This does appear to be the case and the placement has since stopped. It was however Mr McKenzie's opinion that the EPA would permit the soil material to be used on the site.

22 The Tribunal's attention was drawn to the Highlands Regional Waste Management Plan adopted in 1999, which includes the municipality of Moorabool among others. The plan strongly encourages the closure of small tips and their replacement with transfer stations including Mt Egerton. This course of action is strongly supported by the EPA.

23 It was put to the Tribunal that the information that was given and not refuted by Council at the time of the previous hearing regarding a closure notice placed by EPA on the Mt Egerton tip was a misrepresentation. The closure claim seemed to relate to EPA advice some six years earlier to all rural councils regarding the closure of small landfill facilities in favour of transfer stations, on the basis of the lesser potential environmental impact transfer stations.

24 The Tribunal accepts that transfer stations have less impact than tips and are a preferable option that will have a lesser impact on the local amenity and the environment. There are further a number of requirements with respect to this tip which will ensure a significantly reduced impact on the environment and the amenity of local residents.

25 The Tribunal accepts that there is encouragement from the relevant authorities and the EPA and the Highlands Regional Waste Management Group strongly supporting the closure of small local tips and their substitution with local waste transfer stations and that there is a need for a facility in area at present serviced by Mt Egerton. The question that needs to be addressed is whether the proposed site is an appropriate location.

26 The application was lodged with Council on 4 January 2006. Advertising was required and five objections were received. The Council convened a consultation meeting. The Tribunal was informed the meeting was attended by 10 people nine of which supported the proposal and no resolution was achieved at this time. Council subsequently resolved to issue a Notice of Decision to Grant a Permit.

27 The subject site is located within the Township zone and is covered by an Environmental Significance Overlay Schedule 1 - ESO1 Proclaimed Water Catchment Areas and a Design and Development Overlay Schedule 2 DDO2 - Visual Amenity and Building Design. The purpose of the Township Zone is as follows:

•

To implement the State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.

•

To provide for residential development and a range of commercial, industrial and other uses in small towns.

•

To encourage residential development that respects the neighbourhood character.

28 The use of the site as a transfer station within the zone is a prohibited use. A permit however can still be granted for the use under the existing use right provisions at Clause 63.08 which states the following:

If land is used for a use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use which does not comply with the scheme. The responsible authority must be satisfied that use of the land for the alternative use will be less detrimental to the amenity of the locality.

29 In my view it is clearly evident that a transfer station will be less detrimental to the amenity of the locality than the existing tip use because:

•

The level of control of the materials that can be accepted into the station is more restricted.

•

The use of the site as a transfer station will require the closure of the tip and its rehabilitation.

•

The conditions with respect to the use of the site for a transfer station include the landscaping of the site, the improvement of the access and significant improvements in management requirements with no increase in the hours or the intensity of the usage of the site.

30 A permit is required for the proposal under the provisions of the two overlays that apply to the land, the ESO1 and the DDO2. The Environmental Significance Overlay seeks to protect the quality and quantity of water within proclaimed water catchments. The application was referred to Barwon Water under the requirements of the overlay. Barwon Water advised that the proposed septic tank to be installed in association with the gatehouse building is outside the minimum buffer distance from a waterway as described under the Septic Tank Code of Practice and that as a consequence they had no objections to the proposed development.

31 The Design and Development Overlay has the following objectives:

•

To enhance the visual amenity and rural, township and vegetated areas of the Moorabool Shire.

•

To encourage the use of external cladding such as non-reflective materials for building construction.

•

To discourage the use of materials such as reflective cladding for building construction that could have a detrimental affect on amenity.

32 All of the materials intended to be used on the site will be constructed from non-reflective colourbond. Further screening will be provided by the proposed landscaping around the perimeter and its prominence will be reduced by its location within an excavated area. In any event, it was the Council's contention, that given non-reflective materials were to be used in the construction, the provisions of the overlay were not triggered.

33 Clause 52.10 deals with uses with adverse amenity potential. This clause includes sanitary and garbage storage and treatment in a transfer station and stipulates that such a transfer station requires a buffer from a residential area of at least 300m. It is accepted that there are some 17 residential buildings within a 300m radius from the proposed site as well as the Country Fire Authority building. Council in seeking and granting a permit is relying on the existing use provisions already discussed. The Tribunal has already stated that in its view the proposed use will be less detrimental in its impact than the existing use.

34 Council referred the proposal to the Environment Protection Authority and Barwon Water both of which had no objection subject to conditions. The matter was also referred to the Department of Sustainability and VicRoads. Again, there were no objections being received subject to conditions. Internal referral to the Council's Environmental Health Officer and Infrastructure Unit also raised no objection subject to conditions.

35 The issues in this application for review have been outlined in the introduction to this determination. They include; the buffer distance, the impact of the proposal on the amenity of the neighbourhood, traffic impacts at the intersection and at the entry to the site, concerns about the rehabilitation of the site and the lack of need for the use. The failure of the proposal to comply with the requisite buffer distance has already been dealt with.

36 I find with respect to the remaining issues objections that there will be a benefit to the local area associated with the closure and rehabilitation of the tip site and the placement of a waste transfer station on the land and that provided the rehabilitation takes place in accordance with the HLA Envirosciences Landfill, Closure and Rehabilitation Plan which has been approved by the EPA there should be no ongoing environmental issues associated with the previous use of the land.

37 I find that operation of a waste transfer station on the land in accordance with the Eco-Recycle Best Practice and the associated management plan will ensure that there are significantly reduced impacts on local amenity as a result of the use of the land as a transfer station. It should be noted in this regard that all putrescible material will now be contained within a closed and locked bin as will other materials collected on the site and that there will be a greater level of control of these materials both by way of the necessary inspection that occurs when materials are brought onto the site and the additional assessment of these materials when they are taken to an ultimate tipping location or recycled.

38 With respect to the concerns about traffic, I note that there will be no additional traffic associated with the change in the use of the site and there may even be some reduction given the restriction on the acceptance of commercial and industrial waste and on the size of vehicles that can access the facility. In any event the upgrade of the entrance to the site and the intersection of the Ballan-Egerton Road with the Yendon-Egerton Road there would be provision of a left turning lane into the site will result in an improvement on the existing situation.

39 In coming to the view that the use of the transfer station will have less amenity impact on adjoining neighbours I have had regard to the fact that materials stored on the site will be covered and removed from the site at regular intervals. In particular putrescible waste materials will be removed from the site on a weekly basis. This should in the Tribunal's view greatly reduce the extent of odour omission from the site and the potential for the attraction to flies and other vermin.

40 A well managed, landscaped transfer station can, in my view, readily operate in close proximity to a residential area without impacting on the image of the area. I consider that there will be no negative impact on the future of the township of Mt Egerton as a result of the proposal. Further it is clear that there are a number of residents that are of the view that a transfer station would be of benefit to them including those residing within the shire who do not have a waste collection service available.

41 In conclusion the Tribunal finds overall that the Council has addressed the Tribunal's original concerns with respect to the way the transfer station will operate, the nature of the materials that would be accepted and the contrast with the previous operation of the tip site. In the Tribunal's view this transfer station will be a distinct improvement on the operation of the site as a tip. The issuing of a permit for the transfer station offers an opportunity to place conditions on the permit with respect to the management of the site and the landscaping of the site. It further provides the opportunity for the local community to be involved in an advisory role in respect to the operation on the land that will serve to ensure that the impact of this development on local amenity will be minimised. The Tribunal is therefore of a view that a permit should issue for the proposal as requested.

Pursuant to Clause 66(1) (b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 Deputy President Gibson has nominated Member Rickards as the member who is a legal practitioner to determine the questions of law in this proceedings.

The questions of law that have arisen relate to whether a second application for a planning permit can be made for the same proposal in relation to the same land. If a responsible authority can deal with such an application and their decision is appealed the question that then arises is what weight the tribunal should give to its previous determination.

There is nothing that prevents an applicant making numerous permit applications to a responsible authority for the same use and development of the same land. The responsible authority is required to consider each application on its own merits. An earlier decision should be taken into account and given great weight. It could be said that the earlier decision should not be changed unless the applicant can show a change in circumstances which warrants a different view.[1]

The tribunal is not prevented from hearing a repeat appeal in relation to the same application regarding the same land. The tribunal also has to consider each matter on its own merits. Each proceeding that comes before the tribunal is a complete re-hearing. The tribunal is not bound by its previous decisions but that does not rule out the tribunal in its discretion in exercising its administrative functions giving due weight to its earlier decisions in respect of the same use on the same land.[2]

Generally when a second or for that matter third or fourth application is made for the same use on the same land to support any such further applications weight is given to any change of circumstances. Even however if the subject of an appeal is identical to that heard previously and there has been no change of circumstances the tribunal is still required to hear and determine the appeal, acting fairly in accordance with the substantial merits of the case in all proceedings.[3]

A decision of the tribunal is final in terms of the merits of the matter but can be appealed on a question of law to the Supreme Court of Victoria.[4] The ability to appeal on a question of law however does not change the fact that the decision of the tribunal is final with regard to that particular proceeding before it.[5] Whilst there is no longer a provision in terms of the previous s 63 (1) of the Planning Appeals Act 1980[6] the prohibition referred to in that section was in respect of appeals on the merits rather than the law.

The permit applicant is therefore within its rights to make another application to the responsible authority for the use and development of a refuse transfer station on land contained in Crown Allotment 13, Section 15, Parish of Bungal, located on the corner of Yendon-Egerton Road and the Ballan-Egerton Road, Mt Egerton. The applicant for review is within his rights to bring an appeal in relation to the determination by the responsible authority. The tribunal in determining this application is required to consider not only all the matters put before it in relation to this particular application but to also give the weight it considers appropriate to any previous tribunal determination in relation to the same application on the same land.

[1] Amoco (Australia) Pty Ltd v City of Berwick (1983) 1 PABR 166 at 169

[2] ibid

[3] Section 97 Victorian Civil and Administrative Tribunal Act 1998

[4] Section 148 Victorian Civil and Administrative Tribunal Act 1998

[5] Administration of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353; 47 ALJR 621

[6] Repealed by Tribunal and Licensing Authorities (Miscellaneous Amendments) Act 1998