Building and works

The proposal involves the construction of new industrial plant equipment and storage facilities, including:

• 2 grinding mills and associated equipment that will be delivered in two stages
• 9 out-loading silos that have a maximum building height of 51 metres
• Conveyors and associated equipment to allow for the transfer of material from the port to and around the site
• A 2,369 square metre additive shed with a maximum building height of 20.7 metres
• A 8,280 square metre main storage shed with a maximum building height of 19.11 metres
• A 600 square metre workshop with a maximum height of 7.12 metres

The existing operations on the site occupy approximately 37,000sqm (3.7 hectares). The new works would occupy approximately 20,000sqm (2 hectares).

1. The applicant's submissions included the following description of the expanded operation:

1. Post expansion, intended operation would involve:

(a) Material for use in production of cement products, which may include slag, clinker, limestone and gypsum, being unloaded at the wharf and conveyed to the subject land consistent with existing processes. The material would be conveyed from the wharf to dedicated material storages using enclosed conveyors. > > (b) Material would be transferred from dedicated storages to the mill feed slag bin via modifications and incorporation of belt plough to the existing conveyor. > > (c) Gypsum and limestone will be reclaimed via a front-end loader to a single hopper for transfer to their respective mill feed bins. Clinker will automatically reclaim from the clinker storage to the mill feed bins. > > (d) A common conveyor will be used to feed 'wet' material into the proposed mill for processing. > > (e) Despatch trucks will be loaded from four weighbridges during Stage 1 to six weighbridges with the installation of additional despatch storage as part of Stage 2.

1. The proposal also provides for improvements compared with existing operations, in that it provides for:

(a) all accessways within the subject site to be sealed; and > > (b) slag and clinker to be stockpiled inside buildings, rather than outside as occurs from time to time in existing circumstances, > > in each case removing potential sources of nuisance dust.

1. The subject land is within the Industrial 1 Zone ('IN1Z'). The purpose of the IN1Z is:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.

1. There is no dispute between the parties that the proposed use falls within the following definition of the land use term 'industry' at clause 73.03:

Land used for any of the following operations:

a) any process of manufacture;

b) dismantling or breaking up of any article;

c) treating waste materials;

d) winning clay, gravel, rock, sand, soil, stone, or other materials;

e) laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; or

f) any process of testing or analysis.

If on the same land as any of these operations, it also includes:

a) storing goods used in the operation or resulting from it;

b) providing amenities for people engaged in the operation;

c) selling by wholesale, goods resulting from the operation; and

d) accounting or administration in connection with the operation.

If Materials recycling, goods resulting from the operation may be sold by retail.

1. Pursuant to clause 33.01-1, Table of uses, 'industry' is included in Section

1 - permit not required, and provides the following conditions opposite the use:

Must not be a purpose listed in the table to Clause 53.10 with no threshold distance specified.

The land must be at least the following distances from land (not a road) which is in an Activity Centre Zone, Capital City Zone, Commercial 1 Zone, Docklands Zone, residential zone or Rural Living Zone, land used for a hospital, an education centre or a corrective institution or land in a Public Acquisition Overlay to be acquired for a hospital, an education centre or a corrective institution:

• The threshold distance, for a purpose listed in the table to Clause 53.10.
• 30 metres, for a purpose not listed in the table to Clause 53.10.

• Exceed a fire protection quantity under the Dangerous Goods (Storage and Handling) Regulations 2022.
• Require a notification under the Occupational Health and Safety Regulations 2017.
• Require a licence under the Dangerous Goods (Explosives) Regulations 2011.
• Require a licence under the Dangerous Goods (HCDG) Regulations 2016.

Must not adversely affect the amenity of the neighbourhood, including through the:

• Transport of materials, goods or commodities to or from the land.
• Appearance of any stored goods or materials.
• Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

1. Clause 53.10 contains the provisions that apply to 'uses and activities with potential adverse impacts'. The purpose of the clause is to identify those types of activities, which if not appropriately designed and located, may cause offence or unacceptable risk to the neighbourhood'.
2. Clause 53.01-1 details a series of threshold distances, and provides:

The threshold distance referred to in the table to this clause is the shortest distance from any part of the land to:

• land (not a road) in an Activity Centre Zone, Capital City Zone, Commercial 1 Zone, Docklands Zone, residential zone or Rural Living Zone; or
• land used for a hospital, an education centre or a corrective institution; or
• land in a Public Acquisition Overlay to be acquired for a hospital, an education centre or a corrective institution.

An application to use land for an industry, utility installation or warehouse for a purpose listed in the table to this clause must be referred to the Environment Protection Authority under section 55 of the Act if the threshold distance is not to be met or no threshold distance is specified.

1. Under the heading of 'Non-metallic mineral products' the table to clause 53.10 specifies a threshold distance of 1000 metres for cement production where the amount exceeds 150,000 tonnes per year.[5]
2. The threshold distance of 1000 metres is not met. Accordingly, pursuant to clause 71.03-1, if a condition opposite Section 1 use is not met, the use is in Section 2 and requires a permit, unless the use is specifically included in Section 3 as a use that does not meet a Section 1 condition - which is not the case here. The use, therefore, requires a permit.
3. In accordance with clause 53.01-1, the planning permit application was referred to the EPA pursuant to section 55 of the Planning and Environment Act 1987 (Vic) ('PE Act').
4. The provisions relating to use and development referrals are detailed at clause 66.02. Pursuant to clause 66.02-7, an application to use land for an industry, utility installation or warehouse for a purpose listed in the table to clause 53.10 with no threshold distance specified or if the threshold distance is not to be met must be referred to the EPA. The clause identifies the EPA as a determining referral authority in such circumstances.
5. We will detail the EPA's response to the referral later in these reasons.
6. Clause 33.01-2 addresses the use of land in the IN1Z. It includes decision guidelines as follows:

Decision guidelines

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• The effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities.
• The effect that nearby industries may have on the proposed use.
• The drainage of the land.
• The availability of and connection to services.
• The effect of traffic to be generated on roads.
• The interim use of those parts of the land not required for the proposed use.

1. Pursuant to clause 33.01-4, a permit is required to construct a building or construct or carry out works. The following decision guidelines are provided:

Decision guidelines

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• Any natural or cultural values on or near the land.
• Streetscape character.
• Built form.
• Landscape treatment.
• Interface with non-industrial areas.
• Parking and site access.
• Loading and service areas.
• Outdoor storage.
• Lighting.
• Stormwater discharge

1. Clause 02.03 of the Municipal Planning Strategy ('MPS') details the municipality's strategic directions. A series of strategic framework plans are provided at clause 02.04, which are to be read in conjunction with these strategic directions.
2. Relevantly, the 'Economic Development Framework Plan' identifies the subject land as being within the 'Yarraville Port Core Employment Area' which extends between the Port of Melbourne and Hyde Street to the west.
3. Clause 02.03-6 of the MPS sets out the strategic directions for economic development. Under the heading of 'Industrial Related Employment Land, it states the following in respect of Core Employment Areas:

Core Employment Areas are key industrial and commercial areas with an employment role that need to be protected and enhanced to ensure the City's economic future. Council seeks to protect and enhance Core Employment Areas because they function efficiently for employment purposes. Underutilised industrial premises in Core Employment Areas are not obsolete. Instead, they should be regarded as needing adaption or modification.

There are eight identified Core Employment Area precincts in the City including the State Significant Industrial Precincts at Yarraville Port, Tottenham and West Footscray. The Core Employment Areas are:

Yarraville Port

...

1. Specifically in relation to the Yarraville Port Core Employment Area, clause 02.03-6 states:

Yarraville Port Core Employment Area

The Yarraville Port Core Employment Area provides an important buffer between established residential areas and the Port of Melbourne and nearby state-significant MHFs. Most of the precinct is affected by the Environment Protection Authority reduced residual air emissions buffer and a MHF buffer where the integrity of these buffers will need to be protected. The Port of Melbourne is a major land owner and intends to use a part of the land for port, logistics and port-related industrial uses.

Francis Street and Whitehall Street form a major port freight route through the precinct. Future use and development in this precinct will need to have regard to any future road infrastructure proposals that impact this route.

Council seeks to:

• Ensure that land use and development is appropriate for the precinct to function as a buffer to MHFs and the Port of Melbourne's operations.

1. Policy for employment is found at clause 17.01. The objective of clause 17.01-1S is to strengthen and diversify the economy. A strategy is to protect and strengthen existing and planned employment areas, and plan for new employment areas.
2. Local employment policy at clause 17.01-1L details the following objective and strategies for Core Employment Areas:

Core Employment Area objective

To maintain and enhance the economic development role of Core Employment Areas.

Core Employment Area strategies

Encourage a greater range of employment-generating uses.

Encourage development that provides cost-effective and attractive sites for employment generating uses and activities.

1. This clause also provides a policy guideline for Core Employment Areas, which reads:

Consider as relevant:

Whether proposed use and development in Core Employment Areas is consistent with any relevant adopted framework plan or structure plan prepared for the precinct, including any associated urban design and development guidance.

1. Clause 17.03 sets out policy for industry. In respect of industrial land supply, the objective of clause 17.03-1S is to ensure availability of land for industry. Related strategies include protecting and carefully planning existing industrial areas to, where possible, facilitate further industrial development.
2. Specific policy for significant industrial land is provided at clause 17.03-3S, where the objective is to protect significant industrial land.
3. As we understand it, there is no dispute between the parties that the subject land is within an industrial precinct which is important to the local economy. In addition, it is identified as being of state significance.
4. The redevelopment of this large, underutilised landholding is consistent with the role of the precinct and the strategic directions contained in the MPS and in the policies contained in the Planning Policy Framework ('PPF'). Broadly, these seek to protect the role, and support the further development, of this precinct as an important industrial area having regard to economic and employment considerations.
5. That said, the assessment of whether this proposal will represent an acceptable planning outcome must also include consideration of other relevant policies. These policies include those addressing noise, air quality, land use compatibility and traffic. We now turn to set out these policies as they inform our assessment of the proposal.

1. The objective of clause 13.05-1S, noise management, is to assist the management of noise effects on sensitive land uses. The related strategies are:

Ensure that development is not prejudiced and community amenity and human health is not adversely impacted by noise emissions.

Minimise the impact on human health from noise exposure to occupants of sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital) near the transport system and other noise emission sources through suitable building siting and design (including orientation and internal layout), urban design and land use separation techniques as appropriate to the land use functions and character of the area.

1. The purpose and decision guidelines of the IN1Z recognise that noise emissions from industry have the potential to impact on the amenity of nearby residential properties. In particular, the relevant decision guideline requires consideration of the effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities. It also recognises this in the conditions opposite 'industry' in the table at clause 33.01-1, where it refers to the use not adversely affecting the amenity of the neighbourhood by, amongst others, the emission of noise.
2. Noise emissions from the proposal were addressed in submissions and in the evidence called by the applicant. We address this issue later in these reasons.

1. Clause 13.06-1S, air quality management, has the objective to assist the protection and improvement of air quality. A related strategy is to ensure, wherever possible, that there is suitable separation between land uses that pose a human health risk or reduce amenity due to air pollutants, and sensitive land uses (residential use, child care centre, school, education centre, residential aged care centre or hospital).
2. Again, the purpose of the IN1Z, the condition opposite the use in the table at clause 33.01-1 and the decision guidelines of the zone recognise that emissions to air have the potential to impact on nearby residential properties.
3. As with noise emissions, air emissions from the proposal were addressed in both submissions and evidence. Similarly, we address this issue below.

1. Policy for amenity, human health and safety is set out at clause 13.07. The objective of State policy for land use compatibility is to protect community amenity, human health and safety while facilitating appropriate commercial, infrastructure or other uses with potential adverse off-site impacts. Relevant strategies include:
   • Ensure that use or development of land is compatible with adjoining and nearby land uses
   • Avoid or otherwise minimise adverse off-site impacts from commercial, industrial and other uses through land use separation, siting, building design and operational measures.
2. The Planning Scheme also provides local policy for land use compatibility. There is no additional objective, but relevant related strategies include minimising interface and transition impacts of Core Employment Areas, including through siting, building design, landscaping or other mitigation measures at the individual site level.

WHAT DOES THE ENVIRONMENT PROTECTION AUTHORITY SAY AND WHAT APPROVALS HAVE BEEN ISSUED?

1. In its response to the referral of the planning permit application, the EPA observed that the nearest sensitive zone to the subject land is the General Residential Zone - Schedule 1, approximately 245 metres west of the site boundary. It further noted the existence of sensitive receptors (dwellings) in the Industrial 3 Zone approximately 70 metres west of the site boundary.
2. The EPA noted that the use constitutes 'cement production exceeding 150,000 per year and is listed under clause 53.10 as a use with an adverse amenity potential and a 1000 metre threshold distance applies from residential zones'.
3. The EPA further noted that EPA publication 1518 Recommended separation distances for industrial air emissions specifies a separation distance of 500 metres from sensitive receptors (which include the dwellings in the Industrial 3 Zone) for 'cement clinker grinding exceeding 150,000 tonnes per year'. It stated that this separation distance accounts for unintended industry-generated odour and dust emissions and is intended to prevent industrial activity from impacting upon sensitive receptors.
4. Following on from this, the EPA observed that neither the threshold distance nor the separation distance is met by the proposal, and it considered that the proposal has the capacity to impact on nearby sensitive receptors and risks associated with the proposal should be carefully considered and managed.
5. The EPA response addressed matters of contamination, noise generation and dust generation and air emissions. Of particular relevance to this proceeding are the EPA's comments in respect of noise and dust/air emissions. We set these out below:

Noise generation

EPA notes that the proposed 24 hour use of machinery on the site has the potential to generate significant noise, which may impact on sensitive receptors if not appropriately managed.

After a high level review of the submitted Noise Assessment (prepared by SLR Consulting, dated September 2022), EPA understands that the proponent is expected to be able to manage and mitigate this risk, and that the Assessment found that the facility will not exceed the applicable noise limits (as outlined by EPA Publication 1826.4 - Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues) at sensitive receptors.

EPA appreciates that the Assessment emphasises the duty holders obligations under the General Environmental Duty (GED) to reduce noise so far as is reasonably practicable. The proponent is thus encouraged to adopt the noise management and mitigation measures provided in the Assessment in alignment with the GED.

In addition, Council and the proponent may refer to the EPA website page 'How to control noise from your business' for additional guidance relating to noise reduction, including generated by trucks and reversing alarms. Potential additional measures may include modifying activities to minimise the amount or duration of reversing alarms required, and minimising truck movements during the night period (when noise limits are lower).

Dust generation and air emissions

It is considered that by grinding and storing fine materials, the proposal has the capacity to generate significant dust and air emissions if not carefully managed.

A technical review of the submitted Air Quality Assessment (AQA, prepared by Ektimo and dated 5 September 2022) has not been undertaken. However, it is understood that the assessment found peak daily and annual average concentrations of PM10 and PM2.5 at the nearest sensitive receptors will comply with air pollution assessment criteria, inclusive of background concentrations. In addition, the AQA provided a risk treatment plan (RTP) for the site, and recommended several risk mitigation measures including the use of dust filters.

EPA expects the proponent to abide by the recommendations of this RTP, and to minimise risks associate [sic] with dust and air emissions o [sic] far as reasonable [sic] practicable, in alignment with the GED. Further guidance regarding dust management is available through the EPA website page 'How to control dust from your business'

1. The EPA response included the following recommendations:

EPA encourages and expects the proponent to adopt a preventative approach to the generation of contamination, dust, and noise from all operations on the site.

Should a permit for the proposed use and development be granted by Council, EPA also recommends the inclusion of the following permit notes:

1. This permit is not an EPA permission/approval. Before the use or development authorised under this permit starts, the permit holder must ensure that any obligations or duties that arise under the Environment Protection Act 2017 are met. This may include obtaining an EPA permission, approval or exemption, in accordance with the Environment Protection Regulations 2021.
2. The amended Environment Protection Act 2017 came into effect on 1 July 2021. The amended Environment Protection Act 2017 imposes new duties on individuals and/or businesses undertaking the activity permitted by the permit. If your business engages in activities that may give rise to a risk to human health or the environment from pollution or waste, you must understand those risks and take action to minimise them as far as possible.

1. The applicant's submission confirmed that the proposal is a 'prescribed development activity' under the Environment Protection Regulations 2021 (Vic) ('EP Regulations').[6] Accordingly, pursuant to section 44 of the Environment Protection Act 2017 (Vic) ('EP Act'), a development licence issued under section 69 of the EP Act is required for the proposal.
2. Section 69(3) of the EP Act provides:

(3) When determining whether or not to issue a development licence, the Authority must take into account -

(a) any measures the applicant has taken or proposes to take in order to comply with the general environmental duty when engaging in the activity that is the subject of the application; and

(b) the impact of the activity on human health and the environment, including the impact on any environmental values identified in any relevant environment reference standard, taking into account any other activities being or proposed to be engaged in by the applicant or any other person; and

(c) the principles of environment protection; and

(d) the best available techniques or technologies; and

(e) whether the activity is otherwise consistent with this Act and the regulations; and

(f) if the regulations require the Authority to refer the application to a prescribed agency, any comments or submissions received from that agency; and

(g) any comments and submissions received -

(i) in response to the notice of the application published under section 52; and

(ii) within the time specified in that notice; and

(h) any prescribed matter

1. As relevant to subsection 69(3)(a), the general environmental duty requires:

(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

1. The EPA issued a development licence for the proposal on 19 July 2024.
2. The development licence contains a number of conditions which address, amongst others, air quality assessment, noise assessment, a noise measurement program, air monitoring/verification program and a risk management and monitoring program (which includes an operational noise and vibration management plan, and air management plan). The development licence does not take effect until the applicant provides a copy of any required planning permit to the EPA.
3. As the proposal is a 'prescribed operating activity',[7] an operating licence issued under section 74 of the EP Act will be required. Pursuant to section 74(3) of the EP Act, when determining whether or not to issue an operating licence, the EPA must take into account:

(a) any measures the applicant has taken or proposes to take in order to comply with the general environmental duty when engaging in the activity that is the subject of the application; and

(b) the impact of the activity on human health and the environment, including the impact on any environmental values identified in any relevant environment reference standard, taking into account any other activities being or proposed to be carried out by the applicant or any other person; and

(c) the principles of environment protection; and

(d) the best available techniques or technologies; and

(e) whether the activity is otherwise consistent with this Act and the regulations; and

(f) any prescribed matter.

1. The parties agreed the fact that the EPA has issued a development licence is a relevant matter in our consideration of this application, but that we must undertake our assessment against the relevant statutory framework of the PE Act and the Planning Scheme in determining whether a permit should be granted. We note that an operating licence will be required to be obtained before the use can start.

WILL THE PROPOSAL RESULT IN UNACCEPTABLE AIR QUALITY IMPACTS?

1. A relevant consideration in this proceeding is whether the proposed use will adversely affect the amenity of the surrounding area through the emission of dust.
2. The nearest dwellings are within the Industrial 3 Zone to the north-west and are less than 100 metres from the subject land. The closest residentially-zoned land is approximately 400 metres from the active area of the site. While the respondents had not noted any particular impact on their amenity from the current operations at the site, they expressed concern regarding potential impacts of the expansion of the use and the increased number of associated truck movements.
3. Evidence was called from two air quality experts. While both experts reviewed the same reports provided as part of the planning permit application, they each reached different conclusions in regard to the adequacy and accuracy of the initial air quality assessment.
4. Council submitted that there were deficiencies in the air quality assessment such that it could not be satisfied that the proposal would not cause a significant impact on the amenity of the surrounding environment.
5. It relied upon the evidence of Mr Ramsay who provided an expert witness statement[8] and gave oral evidence. Mr Ramsay's evidence was based on his review of the air quality assessment report prepared by Ektimo[9], which accompanied the planning permit application, and consideration of various EPA publications.
6. Mr Ramsay's evidence was that the original air quality assessment by Ektimo:
   • should have used site specific background air quality monitoring data rather than that from the EPA monitoring station three kilometres distant at Footscray
   • used inadequate and inappropriate meteorological data
   • used a uniform ground elevation of 113 metres in the air dispersion model rather than the actual elevations ranging from three to 10 metres,
   • failed to assess the of risk of impacts from nuisance dust.
7. An expert air quality statement[10] was also prepared by Dr Iain Cowan. Dr Cowan had also inspected the existing operations on the site. It was Dr Cowan's view that, while elements of the air dispersion modelling could have been refined, he did not consider that they would significantly change the outcome of the modelling which showed levels of PM 10, PM2.5 (particles of less than 10 microns and 2.5 microns respectively) and respirable crystalline silica ('RCS') would remain well below the applicable Air Pollution Assessment Criteria ('APAC').
8. APACs are concentrations of pollutants in air prescribed in EPA guidelines[11] and Standard[12] that provide a benchmark to understand potential risks to human health or the environment. They are risk-based concentrations that can help identify when, or if, an activity is likely to pose an unacceptable risk to the environment.
9. In a subsequent report[13], Dr Cowan reproduced the air dispersion model incorporating the terrain model for the area. His evidence was that the change in predicted concentration between revised model and the original model was not significant and did not alter the conclusion that the change in impact from particles in the surrounding area is low.

Modelled maximum 24 hour average PM10 site contribution (µg/m3) (APAC: 50 µg/m3)

Modelled maximum 24 hour average PM2.5 site contribution (µg/m3) (APAC: 25 µg/m3)

Table 1 Comparison of modelled concentrations for dwelling in closest residential area, Frederick Street

1. Mr Ramsay acknowledged in his evidence that the deficiencies identified in his report of the modelling undertaken by Ektimo had been corrected in the subsequent report by Dr Cowan and he was satisfied that the modelling showed the impacts would be acceptable.
2. Mr Ramsay's opinion was that dust monitoring should have been conducted over a 12 month period at the site to enable a more accurate assessment of what the actual levels of dust in the area are and use of this data when modelling the impact of additional emissions.
3. M Ramsay was asked by the Tribunal whether he was aware of other similar sites that conducted 12 months of monitoring prior to lodging a planning permit application. He could not provide any examples but stated large developments do undertake baseline monitoring.
4. Dr Cowan's evidence on this matter was that he was only aware of 12 months of air monitoring data being collected for applications lodged for medium-to-large mining operations. He explained that this was due to a greater level of fugitive emissions from open environment mining operations. He referred to EPA Publication 1961.2, Guidelines for assessing and minimising air pollution in Victoria which provided an example of a 'Level 3 Assessment' that includes collecting 12 months of background air quality data for medium and large-scale quarries and above-ground mines in an urban area.
5. We prefer Dr Cowan's evidence that it is large, inherently dusty operations such as open-air mining where extensive background air quality monitoring would be necessary to support an application.
6. Mr Ramsay's oral evidence focused on the lack of a 'nuisance dust assessment' in accordance with EPA Publication 1943 Guidelines for assessing nuisance dust[14] ('Publication 1943'). He referred to EPA Publication 1949 - Separation distance guideline[15] ('Publication 1949'). This guideline lists recommended separation distances between industries and sensitive land uses, such as dwellings. The separation distances are recommended to accommodate both routine or day-to-day emissions and unintended off-site emissions to minimise human health and amenity risks for nearby sensitive land uses. The guideline recommends a separation distance of 500 metres for a facility grinding cement clinker, clays or limestone materials exceeding 150,000 tonnes per year.
7. In this case, the separation distance is not satisfied, and Publication 1949 recommends that a risk assessment be undertaken to aid the decision-maker in determining whether it is an acceptable location for the proposed operation.
8. The separation distance guidelines state:

For applications where particulate pollution rather than nuisance dust needs to be assessed or managed refer to Guidance for assessing and managing air pollution in Victoria (EPA publication 1961).

1. In regard to nuisance dust, the separation distance guideline recommends a risk assessment 'based on the factors in Guidance for assessing nuisance dust (EPA publication 1943)'.
2. Dr Cowan's evidence was that there was no source of nuisance dust. It was his opinion that a nuisance dust assessment is used where there are fugitive dust sources and, as there are no fugitive dust sources, then there is no need for a nuisance dust assessment.
3. This view was informed by his site inspection. He considers the current operations to be well-managed, with risks minimised so far as reasonably practicable. His opinion was that the proposed expansion minimises risks of dust emissions through controls such as enclosed conveyors, materials stored in sheds under negative pressure and vented through dust filters, storage silos connected to dust filers and sealed internal roads. He stated that if a fabric filter should fail, the process shuts down, reducing the risk of emissions.
4. Mr Ramsey during cross-examination accepted that the proposed expansion implemented best available techniques and technologies. When asked what the source of the nuisance dust was, Mr Ramsay stated management or design failures rather than any specific source.
5. We accept the proposed facility is designed to minimise the release of dust and finer particulates. We accept the evidence of Dr Cowan that the proposal will not be a source of nuisance dust and hence a qualitative dust assessment as described in Publication 1943 is not necessary.
6. A Level 2 assessment of air quality risks as per Publication 1961 was described in the original air quality report by Ektimo. This entailed dispersion modelling of particulates benchmarked against APACs to gauge the significance of their impact.
7. Both air quality experts agreed that a Level 2 assessment in accordance with Publication 1961 was appropriate. A Level 3 assessment as described in this publication is for sites emitting a complex mixture of highly toxic substances or where emissions exceed APACs. In such cases, a Level 3 assessment may entail a human health risk assessment.
8. As the APACs are not exceeded in this instance, we do not agree with the proposition by council that a human health risk assessment should be conducted.
9. On the basis of the evidence and submissions, we consider that air emissions from the proposal will not unacceptably affect the amenity of the surrounding area. In addition, we observe that the development licence issued by the EPA contains conditions which address air quality.
10. We note the respondents' submissions which refer to the effects on air quality from trucks using the local road network. Emission standards for vehicles are set at a national level and prescribed by the Commonwealth in the Road Vehicle Standards Act 2018. These are matters that are beyond the scope of this application.
11. We note, however, the evidence of Dr Cowan that the tankers used to transport the product from the site are largely five to seven years old with the vast majority compliant with either Euro V or Euro VI air emissions. It was Dr Cowan's opinion that as the current diesel fuel standards are aligned with Euro VI specifications, this minimises the emissions from the trucks on local roads to the extent reasonably practicable.
12. We consider that this is an 'all practical measures' approach to minimising the impact of truck emissions on the surrounding area.

WILL THE PROPOSAL RESULT IN ANY UNACCEPTABLE NOISE IMPACTS?

1. The applicant called acoustic evidence from Mr Evans. Mr Evans had visited the site, and on three occasions visited the surrounding residential area in May 2025.
2. The uncontested evidence of Mr Evans was based on his review of the noise assessment report accompanying the planning permit application and his own observations and measurements of the existing noise environment and modelling of the noise impact of the proposed expansion of the site.
3. Mr Evans evidence was that he had determined the noise limits for the area following the procedures in EPA Publication 1826 Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venue ('Noise Protocol').
4. His evidence was that as there are other industrial noise sources in the area, the noise limits determined in accordance with the Noise Protocol must be adjusted such that the cumulative noise level does not exceed the relevant Noise Protocol noise limits. He determined a noise limit of 48 dB(A) at Frederick Street and a target noise limit of 45 dB(A) for the site which allows for cumulative impacts.
5. Based on noise modelling of the existing plant, combined with the proposed plant, the evidence was that the model predicted noise levels are less than the target levels that Mr Evans had calculated.
6. Mr Evans considered that there may be further opportunities to reduce noise emissions during the detail design of the plant. He stated that it was a requirement of the EPA to take all reasonable practicable measures irrespective of whether the site would be compliant with its noise limits.
7. Mr Evans supported a permit condition requiring noise from the site not be greater than 3 dB(A) below the noise limits as assessed under the Noise Protocol. A permit condition has been included.
8. We are satisfied the evidence demonstrates that the noise from the expanded operations will not result in an acceptable acoustic impact at noise sensitive locations. There is no evidence to the contrary.

WILL THE PROPOSAL RESULT IN ANY UNACCEPTABLE TRAFFIC IMPACTS?

1. Council and respondents expressed concerns regarding the traffic impacts of the proposal. It is evident that the concerns relate specifically to effects of truck traffic on the amenity of the area. This is an issue which is beyond the scope of this application. The management of the road network to address such impacts is a matter for the relevant road manager/s. What is to be considered as part of this application is the impact of traffic associated with the proposal, in particular whether it can be accommodated by the road network without adversely affecting its operation and efficiency.
2. According to the officer's report, council's Infrastructure Services Department (transport) does not object to the proposal, subject to conditions addressing details of the vehicle crossover.
3. In response to the referral of the planning permit, HTfV advised as follows:

The Head, Transport for Victoria has considered this application in conjunction with the existing freight movement bans that apply within the vicinity and has determined that, provided the Permit Holder adheres to the existing truck restrictions imposed along Francis and Whitehall Streets, the additional trips resulting from this development will not disrupt the local network.

The Head, Transport for Victoria has considered this application and does not object to the grant of a permit.

1. The existing truck restrictions are required to be observed, and be complied with, by all trucks using Francis Street and Whitehall Street, including those trucks associated with the proposal.
2. There is no evidence that the trucks associated with the proposal will not (or will not be able to) adhere to the truck restrictions. Enforcement of the restrictions is a matter for the relevant authorities and is beyond the scope of this application.
3. The evidence is that the proposal will generate approximately 370 truck movements, comprising 185 inbound movements and 185 outbound movements at the Whitehall Street/Francis Street intersection throughout the day. According to the evidence, this volume of heavy vehicles will be spread across the working day, with less than 19 heavy truck movements expected during off-peak periods.
4. The evidence is that Whitehall Street has an estimated environmental capacity of 20,000 vehicles per day and currently carries approximately 12,000 vehicles per day. For Francis Street west of Whitehall Street, the environmental capacity is also 20,000 vehicles per day and it currently carries approximately 10,000 vehicles per day. That part of Francis Street east of Whitehall Street currently carries less than 1,000 vehicles per day and has an environmental capacity of 10,000 vehicles per day.
5. The intersection analysis in the evidence demonstrated that the Whitehall Street/Francis Street intersection currently operates under 'excellent conditions' in the AM peak hour and that this will continue to be the case with the additional truck movements associated with the proposal.
6. According to the evidence, in the PM peak hour the southern leg and western leg will continue to operate under 'excellent conditions'. The northern leg will operate under 'fair conditions' and the eastern leg will operate under 'good conditions'. The evidence is that, in practice, this change to the operation will be immaterial and unnoticeable to existing users. The outcome is acceptable.
7. The evidence concludes that the additional truck traffic generated by the proposal can be accommodated by the road network. There is no evidence to the contrary and we note that neither HTfV nor council's relevant internal department raised any concerns regarding the ability of the road network to carry the additional truck traffic.
8. Reference was also made in the evidence to the proposed opening of the West Gate Tunnel Project ('WGTP') in late 2025. The evidence is that, as a result of the WGTP, a 24 hour truck ban will be introduced along a number of roads, including Francis Street between Roberts Street and Hyde Street.
9. The evidence refers to a Traffic Impact Assessment undertaken for the WGTP which identified the following relevant reductions in heavy vehicle volumes in the vicinity of the subject land:
   • Whitehall Street, between Somerville Road and Francis Street: 1,750 trucks per day
   • Francis Street, between Whitehall Street and Williamstown Road: 4,750 trucks per day.
10. The evidence states an expectation the surrounding street network, in particular Francis Street and Whitehall Street in the vicinity of the subject land will operate under improved conditions as a result of the WGTP with a significant number of trucks projected to be removed from the local street network.
11. In reaching our conclusion that the traffic impacts of the proposal are acceptable, we do not place any reliance on the proposed opening of WGTP. We have formed our view based on the existing conditions as addressed in the evidence and in the consideration of the proposal by council's officers and HTfV. Having regard to this, we consider that the additional truck movements can be accommodated by the street network without an unacceptable impact on its operation or efficiency. The management of the roads, as stated earlier, to address any other impacts is the responsibility of the relevant road manager/s and outside the scope of this application.

1. There is disagreement between the applicant and council in respect of conditions which should form part of any planning permit that issues. In essence, this disagreement concerns overlap in respect of matters regulated by the EPA under the EP Act and those which are properly regulated under the provisions of the PE Act.
2. Both the applicant and council referred to the Tribunal's decision in SITA Australia Pty Ltd and PWN (Lyndhurst) Pty Ltd v Greater Dandenong CC.[16] In that decision, the Tribunal relevantly stated:
   1. We consider that as a general principle, where specific aspects of the use or development of land are controlled by an EPA licence or works approval, conditions in a planning permit for the use or development should not attempt to control the same thing. We consider it may be appropriate for a planning permit condition to state that the use or development (or specific aspects thereof) must be in accordance with a licence or works approval issued by the EPA (as amended from time to time) but the condition should refrain from referring to specific details or plans as these may change from time to time as the licence or works approval is upgraded. Reasons for supporting this general principle include the following.
   2. Planning permit conditions tend to be fixed in time whereas EPA licence conditions are continually upgraded to reflect improvements to environmental best practice and changes in government policy.
   3. EPA licences are subject to ongoing revision on a continuous improvement basis. By contrast, once a planning permit is issued, conditions are not reviewed unless an amendment to the permit is sought. Even then, any changes to conditions will be restricted to the amendments in question. It is difficult to draft planning permit conditions in a way that will ensure they keep pace with changes in technology and practice, improved standards and higher community expectations. What might be considered cutting edge standards and stringent conditions at the time a planning permit is granted, and which are quite appropriate at that time, may fail to meet required standards many years later. Responsible authorities are rarely in a position to closely monitor the details of planning permit conditions or make application to upgrade them on a regular basis.
   4. In many situations this does not matter, but when dealing with potentially polluting uses it is in the community's best interests that current best practice is observed in connection with all aspects of such a use, including handling, storage, transport and disposal of materials used as well as processes employed. This is what EPA licences ensure. They are not fixed in time and conditions are often changed either at the time licenses are renewed or at other times. They therefore provide a far more flexible mechanism for controlling the detailed technical aspects of a use or development than planning permit conditions.
   5. A further difficulty associated with planning permit conditions attempting to address technical aspects of a use or development is the risk of inconsistencies arising between the way in which language is used or understood in a planning or plain English context and the way in which it is used or understood in a technical context or within the environmental regime operating under the Environment Protection Act 1970.
3. Consistent with this decision, we have sought to avoid any overlap in the permit conditions with matters that are addressed by the EPA under its statutory regime. There was agreement between council and the applicant to the inclusion of conditions which require the development and use to be conducted in accordance with the relevant permissions issued under the EP Act without including specific details of the technical nature, form or content of those permissions. We have not included conditions sought by council requiring the provision of evidence to prove compliance with EPA permissions. This is a matter for the EPA.
4. We have also included a condition that makes the operation of the use contingent on the ability to utilise the adjacent berths to receive the raw material for processing. A condition to this effect was sought by council and the applicant, although there was disagreement in respect of the wording. We have adopted the applicant's version of the condition as it allows for changes in the regulatory regime while achieving the outcome sought in respect of the use only operating if the berths are lawfully used for the delivery/unloading of the raw material. The condition has been included having regard to the facts and circumstances of this case, as our assessment has been on the basis that all raw material is received in this manner and not by another means, such as via the road network. The condition also requires the use to cease if the development and use are not authorised by any required permissions under the EP Act.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Construct a building or construct and carry out works

Reduce the number of car parking spaces required under Clause 52.06-5

Waive the requirements at Clause 52.34-5 and Clause 52.34-6

1. Before the development starts, amended plans must be submitted to, and be approved by, the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be to the satisfaction of the responsible authority and must be generally in accordance with the plans prepared by MLEI Consultant Engineers, Drawing No. S01, S02, S03, S05, S06, S07, S08, S09, S10, Issue A date 15/09/22 and Drawing No. S04, Issue B date 28/09/22, but modified to show:

(a) details and specifications of all plant and equipment

(b) any changes arising out of the endorsement of reports or documents under the requirements of relevant permissions issued by the Environment Protection Authority under the Environment Protection Act 2017 (Vic)

(c) deletion of the depiction of 'new heavy duty pavement' running north-south between Comben Street and the Whitehall Street access, west of the main storage shed

(d) a minimum of 16 secure bicycle parking spaces conveniently located and undercover

(e) a Feature and Levels Survey that shows the natural ground level of the site

(f) the installation of 'car entry only' and 'car exit only' signs at the Francis Street staff car park crossover

(g) the vehicle crossover details, including:

1. dimension of width
2. corner splay dimensions

(h) the Environmental Sustainable Design initiatives identified in the report required by Condition No. 7.

(i) any modifications required by the Waste Management Plan required by Condition No. 9.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. Before the plans required by Condition No. 1 are endorsed an overall staging plan showing each stage of construction and commissioning of works must be submitted to, and be approved by, the responsible authority. When approved, the overall staging plan will be endorsed and will form part of this permit.

Compliance with permissions under Environment Protection Act 2017 (Vic)

1. The use and development authorised by this permit must be carried out in accordance with the requirements of the relevant permissions issued under the Environment Protection Act 2017 (Vic).
2. Copies of plans and reports approved by the Environment Protection Authority pursuant to conditions on permissions issued under the Environment Protection Act 2017 (Vic) must be provided to the responsible authority.

1. Noise levels emanating from the premises must not be greater than noise targets set 3dB below the noise limits as determined in accordance with the Environment Protection Regulations 2021 (Vic) or result in unreasonable or aggravated noise as defined by Part 5.3 of the Environment Protection Regulations 2021 (Vic) to the satisfaction of the responsible authority.

1. Concurrent with the submission of plans required by Condition No. 1, an Environmentally Sustainable Design report that details the environmentally sustainable design initiatives that will be incorporated into the proposal must be submitted to the responsible authority for approval. The Environmentally Sustainable Design report must be prepared by a suitably qualified person/s, must explain how the use/development adopts environmentally sustainable design, and must identify the responsibilities and schedule for implementation and ongoing management of the sustainability design initiatives to the satisfaction of the responsible authority. The Environmentally Sustainable Design report must address the following:

(a) energy efficiency

(b) water resources

(c) stormwater management that is consistent with Civil Engineering Report (prepared by KPA Management and Consulting Pty Ltd) but modified to provide a stormwater catchment management plan that details reuse.

(d) transport

(e) waste management

(f) urban ecology.

When approved, the Environmentally Sustainable Design report will be endorsed to form part of this permit. No alterations to the endorsed Environmentally Sustainable Design report may occur without the written consent of the responsible authority. The development must be undertaken in accordance with the endorsed Environmentally Sustainable Design report to the satisfaction of the responsible authority.

1. Before the use starts, all works must be undertaken in accordance with the Environmentally Sustainable Design report endorsed under Condition No. 7 to the satisfaction of the responsible authority.

1. Concurrent with the submission of plans required by Condition No. 1, a Waste Management Plan to the satisfaction of the responsible authority must be submitted to the responsible authority for approval. When approved, the Waste Management Plan will be endorsed to form part of this permit. The Waste Management Plan must have regard to the following:

(a) the management plan must confirm that all waste will be collected by private contractors not Council

(b) the bin storage areas, including dimensions

(c) the screening and bin storage enclosure, including construction details

(d) access for removal and collection.

1. Waste management, including the storage and collection of waste and recyclables, must be undertaken in accordance with the endorsed Waste Management Plan to the satisfaction of the responsible authority.

1. Before the development for each stage starts, a Construction Management Plan for the relevant stage must be submitted to, and be approved by, the responsible authority. When approved, the Construction Management Plan will be endorsed and will form part of this permit. The Construction Management Plan must be to the satisfaction of the responsible authority and must detail how the owner will manage the environmental and construction issues associated with the relevant stage of development. The Construction Management Plan must address, but is not limited to:

(a) the contact name and phone number(s) of the site manager

(b) bulk excavation

(c) management of the construction site

(d) land disturbance

(e) hours of construction, including program/duration of works

(f) noise

(g) control of dust

(h) public safety

(i) traffic management

(j) construction vehicle road routes

(k) largest vehicle expected to the site

(l) soiling and cleaning of roadways

(m) discharge of any polluted water

(n) security fencing, disposal of site waste and any potentially contaminated materials

(o) crane locations during construction

(p) location of site offices, and on-site staff parking

(q) redirection of any above or underground services

(r) site lighting during any night works.

The development of each stage must be undertaken in accordance with the endorsed Construction Management Plan for that stage to the satisfaction of the responsible authority.

1. An Environmental Auditor must be appointed under Division 3 of Part 8.3 of the Environment Protection Act 2017 (Vic) to undertake an Environmental Audit in accordance with the provisions of the Environment Protection Act 2017 (Vic), before the construction of the development starts. The Environmental Auditor must be appointed and undertake an Environmental Audit in accordance with the provisions of the Environment Protection Act 2017 (Vic) and issue:

(a) A Statement of Environmental Audit for the land in accordance with section 210 of the Environment Protection Act 2017 (Vic); and

(b) An Environmental Audit Report for the land in accordance with section 212 of the Environment Protection Act 2017 (Vic).

1. If, pursuant to Condition 12, a Statement of Environmental Audit and Environmental Audit Report is issued:

(a) The development authorised by this permit must not be undertaken unless the Statement of Environmental Audit and Environmental Audit Report states that the land is suitable for the use for which the land is being developed; and

(b) The development authorised by this permit must not be undertaken until compliance is achieved with the terms and conditions that the Statement of Environmental Audit and Environmental Audit Report states must be complied with before the development starts.

1. Vehicular crossing(s) must be constructed and/or modified to the road to suit the proposed driveway(s) to the satisfaction of the responsible authority.
2. All disused or redundant vehicle crossings must be removed and the area reinstated with either/or footpath, naturestrip, kerb and channel to the satisfaction of the responsible authority.
3. Before the use starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

(a) constructed

(b) properly formed to such levels that they can be used in accordance with the plans

(c) surfaced with an all weather seal coat.

(d) drained

(e) line marked to indicate each car space and all access lanes

(f) clearly marked to show the direction of traffic along access lanes and driveways

(g) car spaces, access lanes and driveways must be kept available for these purposes at all times

as relevant to the relevant stage and to the satisfaction of the responsible authority.

1. A Development Infrastructure Levy(s) in accordance with any approved Development Contributions Plan(s) which applies to the land must be paid to the Collecting Agency prior to the grant of a building approval or the development of any buildings and works associated with the permitted development, whichever occurs first, unless the Collecting Agency agrees to a different time for payment.

1. The loading and unloading of goods from vehicles must only be carried out within the boundaries of the land and must not disrupt the circulation and parking of vehicles on the land or the adjoining road network, to the satisfaction of the responsible authority.

1. Before the development (excluding demolition, bulk excavation and site preparation works) starts, drainage plans consistent with requirements of any relevant Stormwater Discharge Permit, and to the satisfaction of the responsible authority, must be submitted to the responsible authority for approval.
2. The site must be drained to the satisfaction of the responsible authority. Stormwater runoff from the site must not cause any adverse impact to the public, any adjoining site or Council asset. Stormwater from all paved areas must be drained to underground stormwater system. Any cut, fill or structure must not adversely affect the natural stormwater runoff from and to adjoining properties.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development.

1. Any poles, service pits or other structures/features on the footpath required to be relocated to facilitate the development must be done so at the cost of the owner and subject to the relevant authority's consent.
2. All pipes, fixtures, fittings and vents excluding downpipes, servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.

1. The use and development must be managed so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, goods or commodities to or from the land

(b) appearance of any building, works or materials

(c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil

(d) presence of vermin

and/or in any other way, to the satisfaction of the responsible authority.

1. The use authorised by this permit must immediately cease if:

(a) The use of Port of Melbourne Yarraville Berth 5 or 6 for the unloading of product associated with the use of the subject land:

1. is not authorised by planning permit PA2302073 issued under the Port of Melbourne Planning Scheme; and;
2. is not otherwise lawful under the Planning and Environment Act 1987 (Vic); or

(b) The development and use (including activities forming part of the use) which require permission/s under the Environment Protection Act 2017 (Vic) are not authorised by such permission/s.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit.

(b) The development of stage one is not completed within four (4) years of the issued date of this permit.

(c) The development of stage two is not completed within eight (8) years of the issued date of this permit.

(d) The use does not start within two (2) years of completion of the development of stage one.

(e) The use is discontinued for a period of two (2) years.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Permit No. TP588/2012 (V0), issued to land at 295 Whitehall Street, Yarraville.

[3] The applicant submitted that in the Port Zone under the Port of Melbourne Planning Scheme ('PMPS'), permission is required to use the Port of Melbourne land as proposed. It further submitted that that permission has been granted through Planning Permit PA2302073. The permit was granted by the Minister for Planning as the responsible authority for the administration of the PMPS and allows the use of land at 267 Whitehall Street, Yarraville, for industry (cement production' pursuant to clause 37.09-1 of the PMPS.

[4] Operating Licence Number OL000128502, issued on 27 July 2016.

[5] The applicant confirmed that in excess of 150,000 tonnes per year will be produced by the proposed operation.

[6] Regulation 16(1) and Schedule 1 Item 56 (activity type H01 - Cement works (operating cement works in which cement clinker, clays, limestone or like materials are ground)).

[7] Regulation 16(2) and Schedule 1 Item 56 (activity type H01).

[8] Air Quality Expert Evidence by Mr Peter J Ramsay of Peter J Ramsay & Associates dated 30 May 2025, Tribunal Book pages 2642 - 2694

[9] Air Quality Assessment for a Proposed Cement Grinding Plant Addition Yarraville, Victoria by Ektimo dated 5 September 2022, Tribunal Book pages 127 - 229.

[10] Steel Cement Air Quality Impact Review by Dr Iain Cowan of Zephyr Environmental dated 30 May 2025, Tribunal Book 2583 - 2641.

[11] Guidelines for assessing and minimising air pollution in Victoria, EPA Publication 1961.2.

[12] Environmental Reference Standard, No. S245 Gazette 26 May 2021, as amended by Environmental Reference Standard No. S158 Gazette 29 March 2022.

[13] Zephyr Environmental memorandum dated 10 June 2025, Tribunal Book 4147 - 4153.

[14] Environment Protection Authority (June 2022).

[15] Environment Protection Authority (August 2024).

[16] [2007] VCAT 156