1. In accordance with Section 184(2) of the Planning and Environment Act 1987 the proposed agreement is approved with the following amendments:
   • (a) The words 'all to the satisfaction of Council' at the end of Clause 4.3 are deleted.
   • (b) Clause 4.7.2(c) is replaced by the following requirement:

(c) Records of the volume of sludge and wastewater removed from the Biolytix® Filter System and Holding Tank for each individual disposal event.

(c) The words 'to the satisfaction of Council' at the end of Clause 4.7 are deleted.

(d) Clause 4.13 is reworded as follows:

If the Owner has not complied with this Agreement within 14 days after the date of service on the Owner by the Council of a notice which specifies the Owner's failure to comply with any provision of this Agreement, the Owner covenants to:

4.13.1 (a) Within a further 7 days cease operation of the System and pump out and dispose of off-site all wastewater and sludge from the System; and

(b) Engage a suitably qualified expert to the satisfaction of the Council to undertake an assessment of the integrity of the System and not recommence usage of the System until that expert has provided to Council written confirmation that the System is or has been brought into compliance with this Agreement.

(e) Clause 4.11 is deleted and all subsequent clauses renumbered accordingly.

1. Costs are reserved.
2. Leave is granted to the Applicant for Review to serve on the Responsible Authority and submit to the Tribunal 2008 a claim for costs by no later than 10 December. The claim for costs, if made, must include itemised costs and the reasons for each item being incurred so that if the Tribunal grants costs the quantum of costs can be fixed.
3. The Responsible Authority may submit to the Tribunal and serve on the Applicant for Review a response to the claim of costs provided for under Order 3 by no later than 17 December 2008. Leave is granted to the Responsible Authority to serve on the Applicant for Review and provide to the Tribunal a claim for its own costs by no later than 17 December 2008. The claim for costs, if made, must include itemised costs and the reasons for each item being incurred so that if the Tribunal grants costs the quantum of costs can be fixed.
4. If served with a claim for costs under Order 4, leave is granted to the Applicant for Review to submit to the Tribunal a response to this claim. Such a response must be submitted to the Tribunal with a copy served on the Responsible Authority no later than 22 December 2008.

Dr Rob Sadler, of counsel instructed by Cahills, barristers and solicitors.

Mr Henry Jackson, of counsel, instructed by Russell Kennedy, solicitors.

Amendment to conditions and requirements of an agreement to be made under S.173 of the Planning and Environment Act 1987.

The agreement is to be made in relation to the installation, operation, maintenance and reporting requirements of a septic tank system in accordance with the requirements of permit conditions issued by Glenelg Shire Council at the direction of the Victorian Civil and Administrative Tribunal.

Several conditions contained in the proposed agreement are in dispute between the permit holder / land owner and the Council.

Section 184(1) Planning and Environment Act 1987

G&K Springer v Glenelg SC [2007] VCAT 2003

1. On 6 August 2007, Member Potts heard matters in relation to a proposed dwelling at Lot 11 Flinders Street in Cape Bridgewater. The determination of the Tribunal in that case was made on 26 October 2007, directing amongst other requirements, the issue of a planning permit for the dwelling and a permit for a septic tank system to service that dwelling.[1]
2. Condition 13 of the planning permit requires a s.173 Agreement (the Agreement) under the Planning and Environment Act 1987 (the Act) to be entered into by the owner of the land and further requires the Agreement to:

...be registered upon the land, which must be in a form and include content to the satisfaction of the responsible authority as follows:

13.1 requirements in relation to water consumption reduction on the land in order to maintain an average wastewater output of not more than 1200 litres per day over any 14 day period;

13.2 incorporation into the agreement of the requirements set out in relation to the Septic Tank Permit issued in relation to the land arising from proceeding P658/2007 before the Victorian Civil and Administrative Tribunal;

13.3 the agreement is to be prepared by the Council and registered on the title to the land and all legal costs and other expenses associated with such preparation, execution and registration of the agreement shall be borne by the Owner; and

13.4 termination of the agreement and cancellation of the agreement from the title to the land, upon connection of the land to reticulated sewerage.

1. Condition 13.2 refers to the requirements of the septic tank permit being incorporated into the Agreement. The relevant requirements of this septic tank permit that have led to this application are to be found at condition 16, viz:

The permit holder must engage a Licensed plumber or the installer of the relevant part of the Septic Tank System approved by the manufacturer, or other such person acceptable to the Responsible Authority to:

(a) Inspect, service and maintain the relevant part of the Septic Tank System:

(ii) in accordance with the corresponding manufacturers specification and EPA certificate of approval; and

(iii) at least annually where a lesser frequency is specified in the manufacturers specification or EPA certificate of approval;

(b) assess the performance of the relevant part of the Septic Tank System including for compliance with the corresponding manufacturer's specification and EPA certificate of approval every 12 months from the date of issue of a certificate of compliance pursuant to section 53MB of the Environment Protection Act 1970;

(c) annually, from the date of issue of a certificate of compliance pursuant to section 53MB of the Environment Protection Act 1970, provide the Council with a written report specifying all servicing and maintenance undertaken, including details of all pump out and disposal of wastewater and sludge from the Biolytix and holding tank, and detailing any remedial action required.

1. The terms of the proposed agreement sought by the Council requires the provision of the annual written report set out in 13.2(c) above. However, the Council also wishes to include a requirement to provide a monthly record of wastewater flow from the Biolytix® System to the reed bed system and the flow from a holding tank back to the reed bed system. Mr Jackson set out that this requirement was so that Council could assess and be assured as to the integrity of the reed bed system. Both parties agree that this requirement will entail connection of flow meters and data recorders. The Council is prepared to pay for these meters and data recorders, however ongoing maintenance and the like would be the responsibility of the landowner.
2. Mr Springer objects to having to fit these meters and the associated reporting and maintenance obligations. The application made under s.184(1) of the Act requires the Tribunal to approve an amended Agreement in accordance with s.184(2) of the Act with these monthly reporting requirements removed.
3. Mr Springer also objected to the inclusion in the Agreement of some requirements being subject to 'the satisfaction of the Council', to allow Council to rectify non-compliances and to the costs of the preparation of the Agreement.
4. It is sufficient to record here that these additional matters, save for the matter of costs in preparing the Agreement, were resolved between Mr Springer and the Council prior to the commencement of the hearing. Our order amends the Agreement with the form of words agreed between the two parties for these matters.
5. As to the matter of the costs of preparing the agreement, both parties indicated that this would likely be resolved without the assistance of the Tribunal and was not pursued in this hearing.
6. Both parties also wished for costs of the proceedings to be reserved and orders made as to the serving of claims for such costs. This we have done.

1. After hearing submissions from the parties, the Tribunal handed down its decision in regard to the remaining matter of dispute, i.e. the matter of whether or not monthly monitoring of flows within the septic tank system should be required. Put simply, the decision is that such monitoring should not be required and the Agreement we have approved is directed to be amended to reflect this decision.
2. The reasons for this decision were set out orally at the hearing. We will set these reasons out here in some further detail for the benefit of the parties.
3. It was submitted by Mr Jackson that the underlying reasoning of the Council including requirements that ultimately lead to the metering of flows as we set out earlier was to address concerns over how best to monitor the integrity of the reed bed system. We understand from the submissions that it is the Council's concern that if, though malicious act of some future land owner (but not Mr Springer), negligence or by sheer accident, the reed bed system should leak, it would present an unacceptable health risk to the occupants of the site and / or to neighbours. It was the Council's intention to use the monthly monitoring data to assess the volumes of treated wastewater circulating within the system and use unaccounted losses in a water balance, to expose any such losses from the system. These they could action by a notice of non-compliance.
4. We reject the necessity of metering to the degree that the covenant proposed by the Council would require. We do so for a number of reasons. In regard to the risk it is our view that the risk of accidental or operational leakage from the reed bed system is, to paraphrase the October 2007 decision, one that will have been addressed in the approval and licensing process of that system by the Environment Protection Authority.[2] The potential exposure risk from this system was central to the earlier October 2007 decision. It is fair to say that in that proceeding, the degree of risk focussed on possible exposures from the top of the system, rather than from a leak below and the quality of the water needed to manage the health risks from such an exposure. The tribunal set out in response to these risks that:

...in having received EPA certification, the matters of human health arising from exposure of the wastewater stream while still within the septic tank system have been addressed and found to be satisfactory. If they were not the systems would not have gained approval. Any requirements for additional risk management when within a domestic situation will be set out within the certificate of approval. Reference to the reed bed and Biolytix Certificates of Approval finds no additional management requirements to address health risks arising from exposure of the waste streams within the system.[3]

1. Further that Tribunal also set out, after having also considered the evidence of expert evidence as to the integrity of the reed bed system that:

I am therefore satisfied that on the balance of evidence, the system as a whole is one that can be considered to be closed. I accept that the reed bed has been designed and should operate such that there is no risk of direct exposure to the wastewater stream. There is no apparent benefit to be gained from requiring the additional disinfection sought by Council.[4]

1. The Tribunal acknowledged that the reed bed formed the most vulnerable part of the system in respect to risk of exposure, while also acknowledging that such risks had been addressed through its design and would have been assessed in the EPA approval process. The Tribunal however erred on the side of caution by requiring fencing and signage to prevent inadvertent entry into the system so as to add an additional layer of risk management.
2. The acknowledgment of vulnerability should not in our view, be misconstrued to read as if the reed bed is somehow such a high risk that further management is required above that which was outlined in various evidence and submissions in the previous hearing. Indeed, the risk of leakage from the reed bed was not the subject of discussion presumably because the applicant had agreed to triple lining of the system. Such triple lining is to be compared with the design under the EPA certificate of approval that relies on a single sheet of 0.2mm virgin polyethylene liner.[5]
3. The above addresses accidental risks. Mr Jackson submitted that a serious concern of the Council is the intentional use of water drawn from the reed bed system elsewhere on the site or some other deliberate actions to remove water from the reed bed system. It is our view that in granting a permission it is reasonable to assume that protective conditions will be adhered and if they are not then enforcement actions can be taken. In any case, for reasons we have set out later, we are satisfied that sufficient data can be gathered and reported from the normal course of maintenance and reporting required under the Agreement we have approved herein.
4. Given the above, it is to our mind, an unnecessary impost on the land owner to undertake additional measures where, for reasons we set out below, add little to the overall management of potential risks. Before turning to this, we also consider it appropriate to comment that it occurs to us that the October 2007 proceeding was an opportunity to air all concerns that the Council may have had with the risks of the system to which, aside from the matter of disinfection, they had arrived at through consent. To use the preparation of an agreement under s.173 of the Act to revisit this issue seems to us not to be within the spirit of that proceeding and the resulting orders. It is unfair to use the s.173 Agreement process to address matters that had ample opportunity to be raised, but appear to be an afterthought.
5. In respect to the degree of existing management, we noted in the hearing, that at each disposal event, i.e. pumping out of the Biolytix® Filter System and / or the holding tank, records would be kept by the operator of the volume of sludge and / or wastewater removed. This follows from the fact that such records will be needed for the annual estimate of such disposal. It would therefore be a matter of providing such event records along with the annual overall estimate to provide an indication of water flows within the system. It is also apparent to us, that on reflection, the disputed requirement while requiring more continuous monitoring would have only seen reporting of such monitoring to the Council on an annual basis. This sits at odds with the Council's submissions that the records would prevent malicious losses out of the system, as they wouldn't necessarily know of it until the report had been submitted and possibly well after any such event. Given the slope of this site, any possible loss from leakage would, one suspects, be apparent far quicker than from an annual review of water balance volumes.
6. Finally, as we noted in the hearing the operation of the system is subject to the EPA approved requirements for inspection, maintenance and servicing. Often these require quarterly inspections and regular desludging and the like. Again this points to an assessment of the degree of risk by the EPA and a suitable management regime being in place. We have not been provided with such convincing evidence as to override or go beyond such requirements. In any event, the system will be subject to inspection and reporting regime by a registered plumber on an annual basis by virtue of clause 4.7.1 and 4.7.2 of the Agreement. These requirements which Mr Springer does not object to, arise from those portion of the orders made by the Tribunal with the parties' consent in the previous proceeding. These will provide for an independent inspection of the system.
7. Given the above, we fail to be satisfied as to the value of additional continuous metering that would arise from the requirements imposed by the disputed provisions of the Agreement. Accordingly, we have approved the Agreement subject to amendments set out in our order.

[1] G&K Springer v Glenelg SC [2007] VCAT 2003.

[2] See also discussion in [2007] VCAT 2003 from [32] to [34].

[3] [2007] VCAT 2003 at [35].

[5] The design of this system was referred to under the previous decision of the Tribunal and was submitted in evidence. It can also be found under the CA 033/92 issued by the EPA.