1. The land is included in the Farming Zone and it is covered by an Environmental Significance Overlay. It is subject also to two Design and Development Overlays, Schedule 2 relating to visual amenity and building design; and Schedule 4 relating to the Western Highway between Leigh Creek and Woodmans Hill. No permit is required under Schedule 2 but one is required under Schedule 4. Schedule 4 required a referral to VicRoads which had no objections provided appropriate acoustic treatments to the dwelling are provided to the dwelling. There is a Public Acquisition Overlay Schedule 1 over the north-west tip of lot 2 relating to realignment of the Western Freeway. This does not affect the proposal. A permit is also required for the development and use of the dwelling under the Farming Zone because the lot is under 40 hectares.
2. In relation to the ESO, some of the matters to be considered are the maintenance and water quality, the affect on the quality and quantity of water in local water courses, and the concentration and diversion of stormwater. This is the reason why the comments of the relevant water authority must be taken into account. The ESO also provides that:

Where the land is not connected to a reticulated sewage and facilities are to be provided for the on-site disposal and treatment of waste water the responsible authority must consider the following:

• Whether a report from a qualified geotechnical engineer has been provided which demonstrates that the land is capable of absorbing sewage and sullage effluent generated on the lot and that the waste water treatment system has been designed to prevent waste water entering any waterway, dam or wetland. Clauses 65 Decision Guidelines and 66 Referral and Notice Provisions are also required to be considered in the assessment of an application.

1. There are a number of other documents that had to be considered in the assessment of the application and these include the document called "Protecting Water Quality within the Moorabool Shire - Water Catchment Protection Policy". This document includes the consideration of matters such as:
   • The proximity of land towards supply reservoir and/or waterway.
   • The time take for water from the site to travel towards supply reservoir.
   • The quality of soil.
   • The slope of the land.
   • The link between the proposal and the use of the land for a productive agricultural purpose.
   • The existing lot and dwelling pattern in the vicinity of the site.
   • Any site remediation and/or improvement of works that form part of the application.
   • The intensity or size of the development or use proposed and the amount of run-off that is likely to be generated.
2. This policy has a dwelling density of one dwelling per 40 hectares in the zone and encourages any new works to be set back at a distance of 100 metres or more from the waterway and the use of building envelopes. It also relates to the Septic Tank Code of Practice 2003 and is in favour of the use of a s.173 agreement. It also asks for a land capability assessment to be submitted with an application.

1. At the hearing a considerable amount of documentation was tabled, particularly by Mr. Glossop. He tabled previous Tribunal decisions in relation to the matters before this Tribunal, some of which provided for the grant of a permit but most of which affirmed the responsible authority's refusals as based on mandatory procedures following objections from water authorities. The tabled documents, together with the witness statement of evidence and submissions, are all retained on the Tribunal file.
2. In assessing this application I have taken into account the documents tabled such as:
   • the Interim Guideline for Planning Permit Applications in Open Potable Water Supply Catchment areas,
   • Protection of Water Quality in the Moorabool Shire Water Catchment Policy,
   • the Planning Scheme Provisions including Schedule 1 to the ESO
   • the Land Capability Assessment for On-site Domestic Waste Water Management,
   • the State and Local Planning Policy Frameworks including the MSS and local policies,
   • the submissions of the parties and
   • the evidence of the witness.
   • the submissions of Mr. Glossop in relation to the Supreme Court application and the tabled Tribunal decisions.
3. Having stated that I am not going to repeat all those matters, in particular the previous Tribunal decisions, as each matter turns on its own merits and the circumstances must be assessed on the site conditions and land capability and how they are influenced by all these other issues to which I have just referred. I have distinguished between an LCA in relation to the land capability in carrying out an agricultural pursuit (that was not provided) and one for its capacity to contain the effluent and sullage when treated, from a domestic dwelling.
4. In relation to the application before the Supreme Court, Rozen v. Macedon Shire Council and ors. and the matters within that application, I have determined that it is inappropriate for me to make any comments on a matter before a higher jurisdiction, even though my conclusions have taken into consideration the matters raised by Mr. Glossop.
5. From CHW's point of view, this matter is all about protecting water quality within the Lal Lal special water supply catchment. CHW has consistently applied its policies and guidelines in commenting on and objecting to applications for new houses in catchments where the density of development will be greater than one house per 40 hectares. This is an ad hoc density that has been commented on by a number of tribunals in previous decisions including the tribunal in review No. P86/2006, which quoted a decision in LW Properties v. Moorabool Shire Council, in which the density guideline was described by that tribunal as a "blunt instrument". However, as those tribunals commented and I myself do now the guidelines at Guideline 1 Density of Dwellings apply a density of 1 dwelling per 40 hectares and then state"

• A catchment management plan etc has been prepared etc
• A land capability assessment for the on-site management of domestic waste water has been completed which shows that a greater or lesser minimum subdivision area and density of development is appropriate.

The land capability assessment should be undertaken in accordance with the requirements of Appendix 8 of the Code of Practice - Septic Tank. On site domestic waste water management, environment protection authority, March 1996 to the satisfaction of the responsible authority.

1. Clearly that has been done in Mr. McLellan's evidence. Now while there was discussion on a perched or non-perched water table, the use of a local meteorological station and the consequent rating given to the land, nevertheless I am satisfied that Mr. McLellan's evidence, in which he states that a combined septic tank and sub-soil absorption trench system is not appropriate but recommends an on-site domestic secondary waste water treatment system provides a substantive basis on which to accept the responsible authority's decision. When questioned closely by Mr. Glossop about the perched table situation, Mr. McLellan's evidence was that the topographic features show that it is not likely to occur. Further, he disputed the fact that the land is subject to a perched water table at the location in which the house and effluent disposal area are to be located. I accept his evidence. In relation to whether the land can satisfactorily contain the effluent I am also satisfied with his evidence and recollect that, in my time in local government in the Barwon Water region, that authority's rule of thumb for the minimum lot size to contain its own effluent in volcanic soils was in the order of two acres or 0.8 of a hectare. This land is 8.3 hectares in area, flat and containing productive red soils. These soils, according to Mr. McLellan are shallow to approximately 450 to 500 mm in depth and therefore would lead to the treated effluent dissipating quickly.
2. It is well understood that secondary treatment plants are far superior to combined septic tank systems in the quality of the effluent that is discharged.
3. In relation to the water catchment protection policy signed by four water authorities for the Moorabool shire, the effluent disposal system section is fully met by the situation of the land in relation to its distance from a waterway in a special water supply catchment, a domestic water channel and a domestic supply reservoir. Its effluent disposal area, because this is not to be a sub-soil absorption trench system but rather one where it is either drip or spray irrigation, will not need to be clear of trees, bushes and shrubs as stated in the guideline. The permit conditions proposed by CHW require a s.173 agreement in relation to the annual inspection and the desludging of any treatment system. The general decision guidelines of this policy have been considered in the engineer's report where appropriate or are not appropriate and therefore from my perspective this system would, on the face of it, appear to be capable of disposing of all effluent from the proposed dwelling and containing it within the site. The issue of pathogens and other matters are those for the relevant environmental health officer to determine when approving of the sewage treatment plant and its on-going use and maintenance are not ones for me to decide under the Planning and Environment Act 1987.
4. In relation to the general merits of the site for its development and use for a dwelling, I have concluded that this site, because of its location between two Road Zones Category 1, is unlikely to be one that would be joined to larger farming area to provide for what the Rural Zone's Reference Group referred to as "highly productive agricultural farming being carried out on land that is in a multitude of titles". It does not appear to be adjacent to any such site and it would not be an easy proposition to continually cross a major road to have this included as part of a productive enterprise. Also this lot appears to be the only lot between the township of Bungaree and the two major road reservations that does not contain a dwelling. While that may not be a planning reason it is certainly a logical one to say that, provided an enterprise can be carried out on this land that makes itself sufficient and because that enterprise requires the establishment of a dwelling to ensure that the enterprise is properly managed, a dwelling should be allowed to be located there.
5. It would seem to me that, based on the farm management plan, the land has the capability of supporting six foals that would be grown out (you learn something new every day, I have never heard that term before). These foals are thoroughbred racing horses that, from the figures provided, are worth a considerable sum of money and therefore require very close attention and supervision. It would be a folly for anybody to embark on an enterprise of isolating these on land where there is no immediate supervision.
6. One of Mr. Glossop's arguments against the establishment of this dwelling on this land is that the use would be intensive animal husbandry, one which the land is not capable of supporting. The farm management plan clearly indicates it is not the case that the land cannot support the proposed number of foals to be grown out on it. Also, I don't know how one could propose that the keeping of six foals on 8.3 hectares could be called intensive animal husbandry therefore I cannot accept that proposition. Clearly the land has the capability to support the foals, clearly they are within the DSE rating as described in the farm management plan. An approximate rating of 10 DSE/horse is regarded as conservative.
7. Because I have concluded that this agricultural use is not intensive animal husbandry it then means that the use is animal husbandry, a section 1 purpose under the farming zone. That means that the responsible authority and the Tribunal have no control over the farming use of the site provided it fits within the definition contained in the scheme and the general land use term that is appropriate to it. Therefore, there is no planning control over the amount of manure that these horses produce, although I would believe that one horse per 1.4 hectares is not going to cover the land with excreta. In any event, an enterprising person would find a good use for the manure.
8. Finally, the land is flat, is not close to a water course or major depressions that will carry water other than in very heavy rainfall away from it.
9. Even in a 1 in 100 year storm event where there may be some sheet water flooding across the land it is unlikely to cause any problems to the quality of storm water flows provided the treatment plant is maintained. The policing of the maintenance is the responsibility of the municipality under the Planning and Environment Act 1987 and other relevant legislation. Health surveyors normally ensure such is a regular occurrence.
10. I note the responsible authority would have determined to grant a permit if CHW had not used its mandatory powers under the Planning and Environment Act 1987 to force it to refuse the application. My decision agrees with the responsible authority's assessment of the application and I will issue a permit subject to the conditions proposed by both the responsible authority and CHW.