(a)

The extent of the development site in the context of the whole lot of which the development site forms part, being the lot with the street address of No. 335 O'Herns Road in Epping (ie Lot 4 P/T:TP PLN:805492A) which includes the existing municipal dog pound and gas extraction area activities.

(b) The entire development, including the carparking, office, silos, conveyors, all roads including existing and proposed access ways, all stockpiles and all settlement ponds, depicted on one plan.

(c) The location of all native vegetation to be retained and/or removed.

(d)

Tree protection zones for all native trees to be retained on the site (as necessary).

(e)

Fencing along the entire perimeter of the site with the exception of the front boundary in which the fence must be setback at least 4 metres from the front boundary. (Inward opening gates must be shown across the vehicular access point).

(f)

(Subject to the Development Plan) landscaping must be located along the O'Herns Road frontage of the site, the eastern boundary of the site, the eastern boundary of the rock crushing facility and raw materials stockpile area to the satisfaction of the responsible authority. The landscaping must be at least four (4) metres wide and must be provided along the front boundary in front of the fence required to be shown under paragraph (v) above. Additional landscaping must also be shown behind the fence referred to in paragraph (v) above and be at least four (4) metres wide. The landscaping must generally be in the form of canopy trees and shrubs, however, must comprise canopy trees behind the front fence required to be provided under paragraph (u) above.

• All stockpiles must not exceed a height of four 4 metres above the ground, and height markers be provided at each corner of the six stockpile areas marked on plan 1 of 4 revised July 2006 to enable the stockpile height to be monitored;

• the stockpiles in the north east of the site immediately south of the sub-surface dry bins being for "finished product stockpiles";

• no part of the stockpiles in the north east of the site immediately south of the sub-surface dry bins are to be placed over the former landfill filled area.

(h) The access point upgraded to the standard required under Condition No. 19 of this permit.

(i) A printed sample of all external colours, materials and finishes of the office building, silos and water tanks.

(j)

Access to and throughout the buildings in accordance with Australian Standards AS 1428.1-2001, AS 1428.2-1992, AS 1428.3-1992 and AS/NZS 1428.4:2002 and conforming with the objectives of the Disability Discrimination Act 1992 (Cwlth). This must be in the form of a separate report and plan and must include reasons why any of the above standards should not be applied.

(k) A wheel washing bay for trucks exiting the site;

(l) A detailed plan which shows and describes the full extent of any works which are proposed to be carried out on the land including any part of the former landfill cap (Development Plan). The Development Plan must be to the satisfaction of the Environment Protection Authority as well as the Responsible Authority.

(m) A detailed plan which shows and describes the full extent of any works required as part of the Drainage Management Plan.

(n)

A detailed plan which shows and describes the full extent of any works required as part of the Dust Management Plan.

(o)

A detailed plan showing details of on site parking provided for overnight parking of agitator trucks and daytime parking of agitator truck drivers' private vehicles.

2

(i) Before the use and/or development starts, three copies of a detailed landscape plan prepared by a person suitably qualified or experienced in landscape design must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and show all proposed landscaping, including details of any vegetation to be retained, the location of all new planting, a schedule of plant species and height at maturity, and a maintenance schedule. Species selection is to be to the satisfaction of the Responsible Authority and the Environment Protection Agency, and the trees to be planted behind the fence required to be provided at the front boundary must be recognised species that assist with dust mitigation. The plan must also accord with the detail specified under Condition (1) (f) above. All proposed trees must be at an advanced stage of growth when planted.

(ii) Before the use allowed by this permit starts landscaping works shown on the endorsed landscape plan must be completed. The landscaping must then be then maintained to the satisfaction of the Responsible Authority.

(iii) Before the development allowed by this permit starts, all existing vegetation shown on the endorsed plan must be suitably marked and protected.

3

(i) Within two months from the date of issue of this permit, or at such later date as the Responsible Authority may approve in writing, there shall be lodged with the Responsible Authority an amount of $5,000 as security deposit for the satisfactory completion and maintenance of the landscaping works hereby permitted.

(ii) Upon completion of the landscaping works to the satisfaction of the Responsible Authority, the Responsible Authority will refund up to 50% of the security deposit to the payee.

(iii)

Upon the maintenance of the landscaping works for a period of two (2) years after the completion of such works to the satisfaction of the Responsible Authority, the Responsible Authority will refund to the payee the balance of the security deposit.

(iv)

In the event that the landscaping works are not completed or maintained to the satisfaction of the Responsible Authority, the Responsible Authority may complete and/or maintain the landscaping work and deduct the cost thereof (including supervision) from any security deposit lodged pursuant to this permit.

4 If any native vegetation is proposed to be removed, before the development starts, a detailed Vegetation Assessment must be undertaken by a suitably qualified professional to the satisfaction of the Responsible Authority, which:

(i)

Identifies the species to be removed for the construction of the new access into the site.

(ii)

Includes a Net Gain Assessment for any native vegetation proposed to be removed.

The vegetation assessment must be forwarded to the Department of Sustainability and Environment for the authority's review and endorsement.

5 Before the development starts, the proposed operator of the concrete batching plant must enter into an agreement in writing with Whittlesea City Council in respect of the upgrade and maintenance of O'Herns Road to the satisfaction of the responsible authority.

The agreement must:

(i) Detail the extent, nature and timing of works required along O'Herns Road to cater for the increase in both the overall traffic volumes and heavy vehicle traffic generated by the development.

(ii) Detail a program for the upgrade and maintenance of O'Herns Road (as determined pursuant to sub-clause (i) above), which will include the physical works to be undertaken by the operator of the concrete batching plant and/or a monetary contribution to be paid by the operator of the concrete batching plant and which can be reviewed periodically for the duration of the uses authorised by the permit or until such time as the primary access to the site can be obtained via the proposed interchange for O'Herns Road and the Craigieburn Bypass but must include a one metre widening 50 metres either side of the crest near Cotters Road. This includes works necessary to seal the unsealed section of O'Herns Road to the entrance to the subject land before use of the site commences.

All costs associated with the preparation, execution and implementation of the agreement must be borne by the operator of the concrete batching plant. The widening of that section of O'Herns Road 50 metres either side of the crest near Cotters Road required by sub-clause (ii) above must be completed to the satisfaction of the Responsible Authority prior to the use allowed by this permit commences.

6 Before the use allowed by this permit commences, the water main must be extended and connected to the site to the satisfaction of the Responsible Authority.

7 The uses authorised by this permit shall cease to operate no later than 15 years from the date of issue of the permit. Unless a further permit has been granted all plant and equipment and works installed or carried out under this permit shall be removed and the land reinstated to its condition prior to the grant of this permit within six months of the date for cessation of the use. Upon the removal of the plant and equipment and reinstatement of the works under this condition to the satisfaction of the responsible authority, this permit will cease to have effect.

8 The development allowed by this permit and shown on the plans and/or schedules endorsed under this permit shall not be amended for any reason without the consent of the Responsible Authority and in the case of that part of the endorsed plans which comprises the Works Plan, without the additional consent of the Environment Protection Authority.

9 Once the use and/or development have started it must be continued and completed to the satisfaction of the Responsible Authority. If the use does not commence or the use ceases for a period of more than two years, all plant and equipment and buildings and works must be removed from the site at the written direction of the Responsible Authority and the land reinstated to its state prior to the commencement of the permit to the satisfaction of the Responsible Authority.

10 The operation of the uses authorised by the permit must comply with the following requirements:

•

The concrete batching plant shall not batch more than 100 cubic metres per hour;

•

No concrete agitator truck may leave the site before 6.00am;

•

The crushing operation shall be limited to one crushing unit , shall not produce more than 50 cubic metres per hour, and be located within the area notated "crushing area" on the endorsed plan;

•

The crushing plant may only crush rock and concrete;

•

No vehicles may be permitted to queue along O'Herns Road or reverse into or out of the site;

•

No deliveries of any materials are permitted before 6.00am and after 5.00pm on any day.

•

The uses authorised by this permit may operate only between the hours of:

i.

5.30 am and 5.00pm, Monday to Friday (non-daylight saving times)

ii.

5.30am and 6.00pm, Monday to Friday (during daylight saving) and 5.30am and 1.00pm, Saturdays

The use, including deliveries and all truck movements to and from the site, must not operate on Sundays or on Public Holidays.

• All trucks leaving the site must pass through the wheel washing facility so that they do not deposit mud or other materials on roadways.

•

All washdown vehicles must be carried out in the designated washing bays, so that all waste waste drains to an oil and silt interceptor trap before it discharges to an approved outlet to the satisfaction of the Responsible Authority.

•

The site shall at all times be kept in a neat and tidy condition to the satisfaction of the Responsible Authority. Any litter shall be immediately removed from the site and surrounding area at the written direction of the Responsible Authority.

•

All garbage and litter generated by activities on the site shall be collected and stored in an appropriate enclosure which is not visible from any road. The enclosure shall be regularly emptied and maintained such that no litter overspills onto adjoining land.

•

All graffiti on the subject site which is visible to the public must be promptly removed or obliterated and the site must be kept free from graffiti at all times to the satisfaction of the Responsible Authority.

•

Goods, equipment, packaging material or machinery must not be stored or left exposed outside the building so as to be visible from any public road.

•

The height of all stockpiles associated with the use allowed by the permit shall not exceed 4m above natural ground level.

•

Vehicles under the control of the operator of the use or the operator's staff must not be parked on O'Herns Road.

•

The loading and unloading of good from vehicles must at all times be carried out within the specified loading area on the site.

11 The amenity of the area must not be detrimentally affected by the use or development through the:

(a)

Transport of materials, goods or commodities to and 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, wast water, waste products, grit or oil

(d)

Presence of vermin.

12

(a) Noise emissions from any plant and equipment must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1

(b) The construction and operation of the acoustic measures proposed at the site and in particular the noise attenuation walls must be assessed and certified by an acoustic consultant as being conformant with SEPP N-1 to the Council's satisfaction within three months of the use commencing.

13 Before starting any buildings or works, engineering plans (Drainage Management Plans) showing a properly prepared design (with computations) for the internal drainage including any modifications to the existing drainage systems on the land associated with the former municipal landfill's rehabilitation plan and the method of disposal of stormwater from all roofed, sealed, and stockpiled areas, including the use of an on-site detention system (if required), must be submitted to the satisfaction of the responsible authority and the Environment Protection Authority. All drainage from the site shall be contained within the site boundaries.

(a)

The drainage works shown on the approved Drainage Plans must be completed to the Responsible Authority's satisfaction prior to the commencement of the use authorised by the permit.

(b)

Where possible drainage collected in the storage dam is to be used as part of the concrete batching process.

14 At all times during the construction phase of the development, the permit holder shall take measures to ensure that pedestrians are able to use with safety any footpath (whether constructed or not) along the boundaries of the site.

15 Before the use starts, areas set aside for parked vehicles for employees and agitator truck drivers' vehicles and access lanes as shown on the endorsed plan must be:

a

Constructed to the satisfaction of the Responsible Authority.

b

Properly formed to such levels that they can be used in accordance with the plans.

c

Surfaced with fully sealed material including asphalt, coloured concrete, coloured patterned concrete, interlocking paving, bricks or other materials as shown on the endorsed plans to the satisfaction of the Responsible Authority.

d

Drained and maintained to the satisfaction of the Responsible Authority.

e

Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

16 No fewer than fifteen car spaces must be provided on the land for the use and/or development and provision must be made within the car park for one car parking space clearly marked for the disabled.

17 In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.

18 Vehicular access to the site must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will be using the crossing(s). The location, design, and construction of the vehicle crossing(s) must be approved by the Responsible Authority. Any existing unused or redundant crossing(s) must be removed and replaced with concrete kerb, channel and nature strip to the satisfaction of the Responsible Authority. All vehicle crossing works are to be carried out with Council supervision under a Road Opening Permit.

19 Vehicles must not reverse in or out of the site, and the operator of the site must ensure that it and its contractors, sub-contractors or suppliers delivering materials to, or transporting concrete from, the site do not park or queue on any parts of O'Herns Road either during or after opening hours.

20 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect to adjoining land.

21 A sign to the satisfaction of the Responsible Authority must be provided directing drivers to the area set aside for car parking and must be maintained to the satisfaction of the Responsible Authority. The sign must not exceed 0.3 square metres in area.

22 The permit holder must identify and adopt water use minimisation and sound water use management practices in the operation of the use hereby allowed by this permit.

23 The use hereby permitted must not contain more than six employees, actively working, on-site at any time without the further written consent of the Responsible Authority.

24

(a) The drainage dam walls must have a stable foundation, be constructed of compacted clay and made watertight with the top and downstream face top soiled and grassed to the satisfaction of the Responsible Authority and in accordance with the requirements of Melbourne Water and the Department of Natural Resources and Environment (if applicable).

(b)

No works shall be started until all necessary licenses, permits and approvals have been obtained from Melbourne Water and the Department of Natural Resources and Environment and any other relevant Authorities (if applicable).

25 All buildings must be constructed in materials which are low-reflective and which do not detract from the general appearance of the area.

26 All sewerage and sullage shall be treated in accordance with the requirements of Council's Public Health Department. All effluent shall be disposed of and contained within the curtilage of the property in accordance with the Septic Tanks Code of Practice 1996 and any relevant Australian Standards.

(Note: An application to install a septic tank is required to be submitted to Council's Public Health Department for approval before any building permit is obtained)

27 No top soil may be removed from the land without the written consent of the Responsible Authority.

28 Upon completion of all buildings and works authorised by this permit the permit holder must notify the Responsible Authority of the satisfactory completion of the development and compliance with all relevant conditions.

29 Prior to the commencement of the use, a Works Approval for the concrete batching plant permitted by this permit must be obtained under the Environment Protection Act 1970.

30 Prior to the commencement of the use, a Dust Management Plan must be prepared to the satisfaction of the Responsible Authority and EPA. The plan should include measures to ensure that any dust from the operation in all weather conditions does not unreasonably impact upon the amenity of the area. The Dust Management Plan must include or provide for the following matters:

o

The provision of an adequate supply of water being available at all times for the purpose of dust suppression

o

Whether any dust suppressing additives need to be added to water supplies used for dust suppression

o

Internal haul roads should be kept wet using a water truck or a fixed sprinkler system

o

Roads should be clearly defined to ensure that vehicles do not randomly drive on the hardstand areas which are not watered.

o

The facilities should not operate without a water truck being available and fully functional (except during wet weather)

o

The water truck driver being on continual watch for raised or loose dust and needs to apply water to dusty areas specifically:

o

where any pulverisers and or any breakers are operating

o

following inspection of dumped loads of incoming raw feed

o

prior to the loader pushing up material into stockpiles

o

all incoming material shall be wetted as required and

o

Loaders should not operate unless the surface on which they are operating has been wetted down.

o

Loaders shall not work a stockpile face unless the area has been wetted down.

o

Loaders should not load material into the crusher hopper unless the material is wet and the plant dust suppressant system is operating.

o All vehicles must exist the site through the wheel wash

o

Any dust and or mud deposited on O'Herns Road by vehicles leaving the site shall be cleaned up without delay.

o Portable sprinkler systems should be provided to prevent dust emissions from stockpiles

o Stockpile working faces should be wet down before commencement of work and kept wet and dust free during operations.

o Only raw feed material that is wet shall be placed on the feeder.

o Dust suppression sprays should be provided at all conveyor transfer points

o The sprays must be operating whenever the plant is running.

o The head of the final conveyor should be equipped with water sprays.

o Measures should be provided to prevent the escape of litter present in the raw feed.

31 The use of the land must be conducted in accordance with the Dust Management Plan approved by the Responsible Authority. The Dust Management Plan may be amended with the consent of the Responsible Authority.

Without the consent of the Responsible Authority no advertising, direction or identification sign shall be erected on the land (including flags, windvanes, bunting streamers or other like devices) except where in compliance with Clauses 52.05 of the Whittlesea Planning Scheme)

Prior to the issue of a Building Approval for the dwelling hereby approved, an application for the installation of a septic tank shall be lodged and approved by Council's Public Health Services Unit.

An advanced tree under this permit shall generally constitute the following :

Evergreen - minimum container size 45 litre spring ring, calliper at ground level 50mm.

Deciduous - minimum calliper at ground level 65mm, minimum height 2 metres.

Prior to commencing any development on the site associated with this permit, the permit holder must contact Council's Public Health Department to determine whether approval for the use or development is required pursuant to the provisions of the Health Act.

No structure may be build over an easement on the subject site without the consent of the relevant Responsible Authority.

Mr J. Cicero, solicitor of Best Hooper Solicitors. He called evidence from Mr A. Bowman, road pavement engineer of Allan Bowman & Associates; from Mr J. Van Der Zalm, environmental engineer of GHD; from Mr N. Goddard, acoustic consultant of Watson Moss Growcott Acoustics; and from Mr N. Bromhead, town planner of Contour Consultants.

Mr Terry Montebello, solicitor of Maddocks Solicitors.

Mr Tim Power, solicitor of Freehills Solicitors, representing Robert Scanlon, Peter and Andrew Long and Northpoint Enterprise Park. Mr Power called evidence from Dr Bellair, environmental science consultant; from Mr Burton, noise consultant of Burton Consulting Group; from Mr P. Long, a land owner in the area; and from Mr N. Wadeson, town planner of Tract Consultants;

Mr J Wallace (valuer) also made submissions on behalf of the Long family.

Mr G. Peake of Counsel representing Mr T. Love. Mr Peake called evidence from his client.

Mr Vearing representing the Vearing Family, land owners in the area.

1 This proposal to use land owned by the Whittlesea City Council and formerly used as a land fill site situated at No. 335 O'Herns Road, Epping ("subject land") for the purposes of a concrete batching plant and materials recycling/crushing facility has raised a number of planning issues which were debated at length and considered carefully by the Tribunal.

2 As a starting point, the Presiding Legal Member Mr Martin was required to deal with a legal challenge by Mr Peake (acting for an adjoining landowner Mr Tom Love) whether in fact a concrete batching plant is a prohibited use in the Special Use 4 Zone ("SUZ4") applicable here. In this regard, Member Martin has rejected this challenge, largely on the strength of the previous Tribunal decision of Hy-tec Industries (Vic) Pty Ltd v Kingston CC (2004) VCAT 2353.

3 With particular reference to how the three objectives of the SUZ4 zoning apply to the circumstances here, the Tribunal finds that the proposed use of the subject land for concrete batching and materials recycling is an appropriate planning outcome and meets the strategic planning criteria for the area. The Tribunal considers that the relevant amenity issues impacting on neighbouring properties (notably traffic volumes and noise, road maintenance and safety, times of operation of the plant, dust noise and visual impacts, drainage and landscape issues) have been dealt with adequately by the Permit Applicant and can be reinforced by permit conditions. Finally the Tribunal is of the opinion there are significant community benefits created by the use proposed. Hence the Tribunal has made orders that a permit issue, subject to numerous permit conditions.

4 The basic nature of this appeal is set out in our summary above. There were two appeals on foot - P186/06 (being the merits appeal against Council's Notice of Decision to Grant a Permit brought by certain neighbouring owners) and P538/06 (being a conditions appeal by the Permit Applicant).

5 The Tribunal sat for five (5) days in total Tuesday 14th and Wednesday 15th June, 2006, and the 10th, 11th and 14th August, 2006, and heard submissions from the parties we have listed under the heading "Appearances" above. In response to some confusion regarding what materials would be utilised for the proposed crushing activities, Mr Cicero during the hearing volunteered that the Permit Applicant would accept a condition (should a permit issue) that only concrete and rock would be utilised for crushing. In addition, to pick up certain modifications (notably the relocation of the crushing facilities further south), Mr Cicero on the third hearing day sought the Tribunal's approval of revised plans 1 and 2 (by consent of the parties, we made this order).

6 Mr Peake in the course of the hearing applied to broaden the Grounds upon which his client Mr Love sought to rely. This was contested by Mr Cicero. After hearing from all relevant parties, we ruled that we would accept the "Statement of Further Grounds" but allowed further time (bearing in mind that further hearing days would be required anyway) during which Council and Mr Cicero were requested to find and circulate additional relevant information regarding the history and extent of the former landfill on the subject land. The environmental science evidence of Dr Bellair and Mr Van Der Zalm during the hearing was also useful in clarifying our understanding of the nature of the development site.

7 We should record our appreciation to Mr Montebello for his useful powerpoint presentation early in the hearing, together with his use of a laptop computer at the end of the hearing to update the draft permit conditions as per the final discussions. Both of these initiatives were very helpful to the Tribunal and we hope will be more broadly used in future. In particular, where the Tribunal spent the best part of an hour (a record?) dealing with the permit conditions at the end of a long day, being able to action the drafting changes straight away made a big difference.

8 Mr Cicero called Mr William Bromhead of Contour Consultants to provide expert planning evidence, Mr Neville Goddard from Watson Moss Growcott Acoustic Consultants on noise attenuation, Mr. Justin van der Zalm on Environmental Engineering matters, and Mr Allan Bowman a Road Pavement Engineer on road pavement matters.

9 Mr Peake representing Mr Thomas Love (the owner of land to the east of the subject land) called Mr Love to indicate to the Tribunal the possible effect on his grazing operations in the area and Mr Peake. As mentioned, Mr Peake also sought a legal ruling from the Presiding Member whether in fact a concrete batching plant is a prohibited use in the context of the zoning controls here.

10 Mr Power representing Mr R.E. Scanlon, Northpoint Enterprises Park Pty Ltd and Andrew and Peter Long called Dr. Terry Bellair to provide expert evidence on Environmental Engineering issues, Mr Burton from Burton Acoustic Consultants on Noise issues, and Mr Nevin Wadeson from Tract Consultants on town planning matters. We also heard submissions from Mr Wallace on behalf of the Long family.

11 Finally Mr Vearing appeared on behalf of the Vearing family, a long established farming family in the area. He focused on possible impacts of the proposal on his family property immediately north of the subject site.

12 The Tribunal carried out an inspection of the site on 17th August, 2006 and were accompanied in inspecting the development site by Mr Stuart Castle the applicant and the Long brothers, respondents to the hearing. The Tribunal otherwise drove by itself around various other relevant areas of the locality, including inspecting the relevant length of O'Herns Road, the two dwellings owned by Peter and Andrew Long, the existing municipal dog pound, the gas extraction infrastructure and Northpoint Business Park.

13 The subject site is owned by Council and located within the north-eastern corner of land known as No. 335 O'Herns Road Epping. The whole lot of which the development site forms part is located approximately 290 metres west of the Craigieburn Bypass, is irregular in shape and contains a frontage width of 392m to O'Herns Road, a maximum depth of 1.3km and a total site area of 49.14Ha.

14 Most of the land is cleared of vegetation with the exception of the northern (O'Herns Road) frontage and the eastern boundary which have perimeter planting of trees and shrubs.

15 The application essentially involves that part of the whole lot situated between the runoff drain associated with the capped landfill and the eastern boundary of the site. The subject site, where the activities are to take place, can generally be described as containing the following site characteristics:

•

A direct frontage of 7m with O'Herns Road, being an access way.

•

Two main activity areas linked by an internal road. The most north-eastern area will comprise an approximate width of 75m and a depth of 200m. The second area to the south-west of the first, will comprise an approximate width of 90m and a depth of 60m.

•

A total development area of approximately 2.04 ha.

•

Topographically, the subject land rises a maximum of 1 metre over a distance of 100m. A natural mound is however located along the front boundary of the site. The mound is approximately 2m above the level of O'Herns Road.

•

The subject land is not known to be flood prone.

16 The whole lot in question is zoned part Special Use (Schedule 4) - Extractive Industry and part Rural and is currently being used for gas extraction and as a Municipal dog pound. That part of the whole lot on which the proposed development will take place is simply zoned SPZ4. The whole lot encompasses the existing uses of gas extraction and a dog pound to the south-west. It was common ground that part of the whole lot was formerly used as the Whittlesea Municipal tip, which has since been capped. The need to understand the extent and boundaries of the former landfill vis-a-viz the proposed development site was a key challenge during the hearing, but the Tribunal is confident that the appropriate information in this regard was available by the conclusion of the hearing.

17 Land to the north-east of the site, on the eastern side of the Craigieburn Bypass, is to be developed for a range of residential and other urban purposes associated with the VicUrban development, 'Aurora'. This land is located approximately 417m north-east from the proposal site and is currently zoned Rural with an application to rezone to Comprehensive Development Zone pending.

18 Land north of the site, on the opposite side of O'Herns Road, is currently used for rural enterprises, particularly cattle grazing. This land is currently zoned 'Green Wedge'. The land also includes a dwelling house that is located approximately 60m north of the front boundary of the site at No. 330 O'Herns Road.

19 Land to the east of the site is primarily used for rural purposes, particularly cattle grazing. This land is partly zoned SUZ4 and partly Rural, and this land features a significant basalt rock resource. This land has been mooted for extractive industry in the future by its owner Mr Love_._

20 Land immediately to the west of the site, No. 375 O'Herns Road, is used for extractive industry and Planning Permit No. 705082 (Amended) was issued 8th July 1999 for this use. Land west of No. 375 O'Herns Road is used for a mix of extractive and rural purposes, particularly cattle grazing. This land is zoned Special Use.

21 Land to the south west of the site, No. 480 Cooper Street, is used as a Materials Recycling Centre and Planning Permit No. 707068 (Amended) was issued for this use on 3rd September 2002. This land is zoned Industrial 1.

22 In terms of areas that have been subject to relevant strategic planning, a good starting point is the "Cooper Street Precinct Study Area" between the Hume Highway and High Street, as shown at page 4 of the 1996 Cooper Street Strategy document prepared by Tract Consultants. We shall return to this document further below in this decision.

23 We also refer here to the "Cooper Street Employment Area", being a "sub" part of the broader Cooper Street Precinct, located east of the Craigieburn Bypass, both north and south of Cooper Street extending between the Bypass easterly towards Epping Plaza. A high profile example of a new use in this Employment Area is Northpoint Business Park.

24 The applicant proposes to use and develop part of the north eastern section of No. 335 O'Herns Road for a concrete batching plant and materials recycling/crushing facility. The relevant plans indicate that this will in turn involve material stockpiles for use in the plant, associated buildings and plant and parking for employees on the site. All of these facilities with the exception of a minor portion of the material stockpile will be located on natural ground as per the amended plans and storage.

25 The materials crushing and storage facility will be located to the south west of the site, some 250 metres further south from its originally proposed location on top of the landfill cap (it will be linked with the batching plant via an unsealed crushed rock roadway). It was common ground at the hearing that no EPA approval is needed for the materials crushing operations (although such approval will be required for the concrete batching plant).

26 The concrete batching component as per the amended proposal will constitute the delivery and storage of materials used to make concrete i.e. cement, aggregate, fly ash and water within sub-surface storage bins, silos, stockpiles and/or water tanks on site. The majority of the aggregate will be crushed on site using a mobile crushing plant. Aggregate is defined as sand, crushed rock or broken concrete. The concrete batching facility will comprise the transportation of these materials to a mixing chamber via conveyor and then discharge into agitator trucks for mixing and delivery to sites. The Tribunal was informed approximately 40-60% of the mixture (particularly the aggregate) will constitute recycled material which will be sourced from road construction activities.

27 All storage loading and mixing activities will take place behind a proposed 7 metre high acoustic wall as proposed by the applicant's Acoustic Consultant Report and the amended plans 1 & 2 of 4 dated July, 2006. The proposed office building will also provide acoustic protection to the house at 330 O'Herns Road. The other aspects of the proposal are as follows:

•

The plant will incorporate an office building, car parking areas, two truck weighing bridges, four storage silos, two 27,000 litre capacity water tanks, sub-surface feed bins, truck loading points, conveyors, stockpiling and crushing areas.

•

The office building will have an overall height of 3.9m (to the ridge of the roof) and will measure 6 metres wide by 14.5 metres long. The building provides for two offices, a reception, control room and amenities. The office will be constructed from colourbond material and will be set back approximately 40m from the street frontage.

•

The carparking area is to be located in front of the office building and will comprise eight spaces plus requirements for agitator truck driver's parking with one space being a designated disabled space. The car parking area will be set back approximately 22m from the frontage of the land.

•

The four silos will be used to store materials used in the construction of concrete, including cement and fly ash. The silos will each stand 17.8m high and will be set back approximately 69m from the O'Herns Road frontage of the site. Views to the silos from the north, are anticipated to be screened by the office building, existing vegetation onsite, the existing earth mound at the front of the site, and the O'Herns Road overpass over the Craigieburn Bypass.

•

The entire area under the proposed batching plant, storage bins and circulation area is to be sealed.

•

A chain mesh fence is to be erected around the perimeter of the concrete batching plant and post and wire rural style fencing will be used to fence off the stockpile areas.

•

Two weigh bridges will be located within the access to the site approximately 30m from the front boundary. The weighbridges will weigh raw product brought to the site and finished product leaving the site. The weighbridges will be managed from the control room.

•

The water mains serving the residential development occurring to the north-east of the site will be extended to also service the proposal.

•

The amended proposal indicates a drainage storage facility will be constructed adjacent to the crushing area and existing leachate dam at the southern end of the existing table drain which is located on the outer edge of the landfill cap to meet EPA and other Council requirements.

•

The core operating hours of the crushing and recycling facility proposed by the Permit Applicant are to be between

5.30am - 1.00pm Saturdays with deliveries of raw materials occurring at times outside these hours.

•

A maximum of six staff will be located at the site at any one time with three operating the batching plant and a further three associated with the materials recycling facilities.

•

At peak operation the plant will generate the following traffic:

Concrete Trucks (14m agitators) - 100 vehicles 200 trips/day

Raw Material Trucks 50 trucks and dogs 100 trips/day

Standard Vehicle trips 15 vehicles 30 trips/day

This equates to a total of 330 trips/day or 30 trips/hour over an 11.5 hour day.

•

Should planning permission be granted for the proposal the applicant has indicated their intention to seek a Works Approval Permit from the EPA (Victoria). The application and assessment of the Works Approval Permit addresses the specific environmental issues associated with concrete batching plants, including noise, air emissions and dust, and waste water/contamination treatment. A concrete batching plant of the capacity proposed in this application cannot operate unless a Works Approval Permit has been granted by the EPA.

28 We note Mr Power's comments during the hearing that his clients were disappointed at the lack of rigour involved in the preparation of the permit application and council's assessment of it. For the record, the fact that the need for a "Dust Management Plan" only surfaced late in the process does lend some weight to this criticism.

29 The Tribunal notes the locality where the proposed use is to be conducted is zoned Special Use Schedule 4 - Extractive Industry ("SUZ4") with no overlays applying to the site. The purposes of SUZ4 are:

•

To recognise or provide for the use and development of land for extractive industry.

•

To encourage interim use of the land compatible with the use and development of nearby land.

•

To encourage land management practice and rehabilitation that minimises adverse impact on the issue and development of nearby land.

30 In the SUZ4 the use of "Industry" is a Section 2 use, provided it complies with the condition that it must not be purpose listed in the table to clause 52.10.

31 The Tribunal notes "Materials recycling" is a Section 2 Use and has no condition with which it must comply.

32 Industry is defined in the scheme as :-

"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 (other than Mineral, stone, or soil extraction);

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 level land as any of these operations, it also includes:

a

storing of 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".

33 "Materials recycling" fits within the definition of "Industry" other than in the SUZ4 Zone, where a use approval is not required but approval for buildings and works associated with the use requires a permit.

34 In terms of the proposed concrete batching plant, the Tribunal is of the opinion the plant needs both a use approval and a building and works approval.

35 Further below there is specific discussion of the issue whether the use of a concrete batching plant on the subject land is:

•

a permissible use (as Mr Cicero and Mr Montebello urged us to find); versus

•

a prohibited use (which Mr Peake pursued) due to the operation of clause 52.10 of the Planning Scheme.

36 In regard to car parking Clause 52.06 the scheme requires 10% of the site area used for crushing/recycling be allocated.

37 For industry which would include the batching plant, the requirement is 2.9 spaces for each 100 square metres of net floor area which can be adequately met on the site. Additional allowance will also need to be made for the parking of concrete agitator truck drivers' private vehicles on the site.

38 Under the Environment Protection Act 1970, a Works Approval Permit will be required for the concrete batching plant and this will place restrictions on the control of noise, dust and water discharges to the environment. The Tribunal notes the EPA did not object to the issue of a planning permit for the use subject to conditions on dust, noise and Works Approval.

39 The land in question fits within the metropolitan urban growth boundary and is therefore earmarked for future urban development. Both clauses 21.04 and 21.06 in the planning scheme designate the locality as one where future employment generating activity is encouraged.

40 In terms of the broader policy framework, the Tribunal notes there has been considerable strategic planning over the past 5-10 years, with Epping North Strategic Plan covering the area east of the Craigieburn Bypass and north of O'Herns Road which is currently in the early stages of being developed by Vic Urban as the "Eurora" residential estate.

41 Land to the south of O'Herns Road and east of the Craigieburn Bypass forms part of the Cooper Street Precinct which seeks to develop land for employment generating purposes including industry, business and some commercial. Mr Montebello's written submission at paragraph 34 makes the following useful observations - "The area on the east side of the by-pass was recently the subject of a panel hearing for Amendment C31 which sought to give effect to the Cooper Street Employment Strategy. Broadly speaking, that strategy seeks the development of the land between Cooper Street and O'Herns Road for employment generating uses including industrial, business and to a lesser extent commercial. Mr Scanlon, one of the objectors to the applications, is one of the principal developers in that area". Mr Power (appearing for Mr Scanlon) provided us during the hearing with relevant pages from the Cooper Street Employment Area (part 1) Development Plan (panel version).

42 As alluded to, the land on the west side of the Craigieburn Bypass (in the locality south of O'Herns Road through to Cooper Street) is subject to the Cooper Street Strategy which was released in 1996 and which is a reference document. The construction of the Craigieburn Bypass, the adoption of the Cooper Street Employment Area Strategy and the establishment of a significant materials recycling precinct indicate to the Tribunal that significant changes have occurred in the locality that is the focus of the Cooper Street Strategy since 1996. The relevant area between Cooper Street and O'Herns Road further north features a range of uses, notably materials recycling, extractive industry, animal welfare and refuse disposal.

43 The Tribunal notes that Council views the proposal as being consistent with the range of land uses currently being conducted in the area and its location within a rapidly developing area will provide convenience to users of the manufactured produce. However Council is seeking a 10 year limit on the life of the permit, in recognition that the appropriateness or otherwise of the proposal may be a different proposition ten years from now.

44 In relation to other relevant policies, Mr Montebello referred us to Clause 17.03 in the State Planning Policy Framework and the local policy of Clause 22.08 (Council's materials recycling centres policy). Mr Peake also highlighted Clause 21.06-9 dealing with "image and appearance" together with clause 22.09 (Industrial Development Policy).

45 In relation to the likely need to remove some native plants as part of creating the new accessway, Condition 4 deals with this. In his presentation to us Mr Montebello indicated that no permit is needed for such removal due to the Clause 52.17 exemption applying to native vegetation removal associated with "... vehicle accessways which are ancillary to the building". This was not contested by any other parties.

46 Over the five days of the hearing the Tribunal heard a broad range of submissions on a number of issues. We do not intend to repeat the submissions but rather these will be categorised into key issues commencing with the legal issue of whether a concrete batching plant is a prohibited use in a SUZ4.

47 The following legal discussion and ruling is made by Member Martin alone, as the Presiding Legal Member.

48 To recap, the SUZ4 zoning makes "Industry" a permissible use provided that the particular form of industry is not "a purpose listed in the table to clause 52.10". During the course of the hearing, the question arose as to whether a concrete batching plant is a prohibited use in a SUZ4 by virtue of concrete batching being an industry that is listed in the table to clause 52.10 of the Planning Scheme, thus making it prohibited by virtue of Clause 31.02. The relevant specified buffer distance for a concrete batching plant is Clause 52.10 is 300 metres from land in a residential zone or a Business 5 zone (or other zones or designated sensitive uses that are not relevant).

49 It was common ground that the key case here is Hy-Tec Industries (Vic) Pty Ltd v Kingston City Council (2004) VCAT 2353. Although that case involved a Special Use Zone Schedule 2, it is understood that the zoning in Hy-Tec and the Schedule 4 zoning in question here is for all intents identical. In simple terms, the critical issue facing Member Komesaroff in that appeal was whether:

•

following Kingston Council's line of thinking, the mere fact that "concrete batching plant" is listed as a purpose in the relevant table in clause 52.10 makes it a prohibited use; or alternatively

•

following the Applicant's preferred approach, the real purpose behind the threshold buffer distances is merely to establish a mechanism in terms of whether or not a permit is required. Following this approach, even if the buffer distance is not met, this triggers a permit requirement rather than a prohibition situation.

50 Member Komesaroff favoured the Applicant's approach. At paragraph 20 she states that it would seem "remarkable, absurd and against common sense" for a concrete batching plant to be a prohibited use in a Special Use Zone Schedule 2, regardless of whether or not the buffer distance is met, and bearing in mind that Council's interpretation would allow sand to be extracted on the site in question but not used for concrete batching. In addition, Member Komesaroff gave weight to the report of the Advisory Committee on the Victorian Planning Provisions August 1997 and at paragraph 37 she concluded as follows.

Following also the common law principle of statutory interpretation, which eschews the absurd, I cannot bring myself to believe that the draftsperson of this planning scheme, in this SU2 (Extractive Industry) zone, turned his or her mind to effectively prohibiting industrial uses complying with threshold or buffer distances from sensitive areas, when industry is not specifically expressed as a section 3 prohibited use in this zone.

51 At the hearing before me, Mr Peake urged me to find that this Hy-tec decision was wrongly decided. At paragraph 7.9 of his written submission, he stated that "Words in a planning scheme are to be given their plain English meaning, unless that would clearly lead to an absurdity. It is submitted that no meaning other than the obvious one can be attributed to the words "must not be a purpose listed in the table to clause 52.10".

52 He also relied on the submission that the debate in the Hy-tec case (and in turn the decision by Member Komesaroff) did not have proper regard to the different role of clause 52.10 in different zones in the Victorian Planning Provisions. In this regard, Mr Peake highlighted the fact that in an Industrial 1 zone, "Industry" (other than materials recycling) is a Section 1 use, subject to the relevant condition involving clause 52.10. However Mr Peake also pointed to the fact that the same form of condition applies in relation to the use of "Industry" in the Mixed Use zone, the Township zone and the Business 2 zone, except that in these three zones "Industry" is a Section 2 (ie permissible) use. Following Mr Peake's submission, what can be discerned here is that the clause 52.10 condition in fact serves two different purposes rather than one (ie either being a permit trigger or a prohibition, according to the relevant zoning). Mr Peake put to me that if I accepted this basic line of thinking, then it follows that where in the SUZ4 zone there is a form of Section 2 "Industry" that is listed in clause 52.10, then that industry is prohibited (as per the situation with the three other comparable zones).

53 In response, Council and Mr Cicero urged me to follow Hy-tec, on the basis that the method of interpretation and findings used by Member Komesaroff are correct, sensible and appropriate.

54 While the Tribunal understands the point Mr Peake is making, ultimately the Tribunal finds these submissions unpersuasive. Even following Mr Peake's own written submissions, the line of interpretation he is urging the Tribunal to adopt should be rejected if it would result in what the Tribunal sees as an absurd result. Member Komesaroff made it very clear in her Hy-tec decision that she considered that the narrower line of interpretation promoted here by Mr Peake would be "remarkable, absurd and against common sense". The Tribunal also refers to the quote from her decision set out above. These are not qualified words from Member Komesaroff but put forward a clear and unequivocal finding by her.

55 The Tribunal sees nothing in the submissions of Mr Peake and the circumstances of this case to raise any substantial challenge to the findings of Member Komesaroff. Regardless of Mr Peake's comparison of how clause 52.10 is treated where the use of "Industry" appears in the Industrial zone compared to the three other relevant zones, this does not change the fact that the Tribunal here endorses the "remarkable, absurd and against common sense" findings of Member Komersaroff in Hy-tec.

56 The Tribunal also notes this region has been the subject of very active strategic planning over the past 5-10 years. By way of example of the changes taking place in the precinct, during our inspection we observed some impressively large earthworks adjacent to this section of O'Herns Road, as part of sewerage works we understand are associated with the Aurora project.

57 In summary, it is clear that this region is a dynamic and evolving one in terms of both:

•

the relevant strategic controls; and

•

the wide range of uses which one can observe "on the ground". For example, during our inspection of the precinct, we observed areas relatively close together being used for materials recycling, extractive industry, animal welfare, refuse disposal and for grazing purposes. In addition, the "plot is thickened" by Mr Love indicating during the hearing that his wish to still to be able to quarry for stone his site east of the subject land in accordance with the SUZ4 zoning (which also suggests that the current cattle grazing activities on Mr Love's adjacent land may be more a transitional use).

58 In terms of the weight we consider should be given to the 1996 Cooper Street Strategy, while we accept that this Strategy still retains a degree of relevance, it has to some extent been overtaken by the construction of the bypass, the adoption of the Cooper Street Employment Area Strategy and the establishment of a significant materials recycling precinct.

59 Turning to the overall findings of the Tribunal on these strategic planning issues, the Tribunal finds that the temporary use of the subject land for a concrete batching plant and materials recycling facility is on balance consistent with and supported by the relevant strategic policies. In particular, we rely here on the following.

60 The first objective of the SUZ4 zoning is "To recognise or provide for the use and development of land for extractive industry". We were told during the hearing that Mr Love still hopes to use the adjacent land to the east for extractive industry activities. We consider that a concrete batching plant and materials recycling use has a high level of synergy with potential on-going extractive activities in that part of the locality still zoned SUZ4, rather than being a more sensitive new use that would pose a major threat to for example Mr Love's preferred future extractive industry use of his adjacent site.

61 The second objective of the SUZ4 zoning is "To encourage interim use of the land compatible with the use and development of nearby land". As we have already highlighted above, notwithstanding that over the longer term there may be a trend to more "higher order" activities occurring on nearby land, in the medium term the indications are that there will continue to be a wide range of existing uses (some benevolent, some not so benevolent) occurring on "nearby land". Clearly it will remain the case for some years that the "nearby land" cannot be described as a "pristine rural area" nor a "residential heartland". In our view this creates a significant degree of flexibility in terms of what constitutes a "compatible interim use" for the purposes of this objective.

62 The third objective of the SUZ4 zoning is "To encourage land management practice and rehabilitation that minimises adverse impact on the issue and development of nearby land". We make several comments here. First, the requirement here is that any adverse impacts be minimised, rather than the test being that there are no adverse impacts. Second, what constitutes a reasonable degree of "minimisation" depends in part upon the level of sensitivity associated with the other uses occurring on the nearby land. As indicated, the reality here is that some of the other existing nearby uses can hardly be described as pristine activities, whilst others (eg Northpoint Business Park) are some distance away and/or on the other side of a major piece of infrastructure in the form or the Craigieburn Bypass. Third, the proposal here involves a finite life of the permit, albeit with disagreement whether the sunset date should be "10 years" versus "15 years".

63 In relation to those specific local policies or strategic documents which point towards the locality here over time having a more urban/commercial flavour (eg the Cooper Street Employment Strategy) together with the fact that the land further to the north-east will feature a major residential development over the long haul, this needs to be properly balanced against the reality that these future new directions will take many years to unfold. Even then, these new range of uses will not necessarily extend right up to the boundaries of the subject land. Whilst recognising arguments both ways, on balance our view is that within a 10-15 year timeframe, the thrust of the relevant strategic policies is actually supportive of rather than discouraging this type of interim use. To the extent that the objectors submitted that the proposal will unduly compromise strategic planning objectives for the region over the next 10-15 years, this submission is rejected.

64 With respect to Clause 22.08 (being Council's materials recycling policy), we accept that the proposal has a high level of compliance with this policy (to avoid duplication, we endorse Mr Montebello's analysis of this issue at paragraph 53 of his written submission).

65 To the extent that our findings here conflict with any relevant aspects of 1996 Coopers Street Strategy, we give these conflicting aspects little weight due to the 10 year passage of time since that document was published, and noting that there have been fundamental changes to the situation "on the ground" since 1996. We rely here on the fact that the recent panel report for Amendment C75 included some commentary to the effect that the 1996 strategy is in need of revision. At page 14 of the panel report, its author Mr Rynd Smith describes the 1996 strategy as "either implemented or by-passed by events".

66 In reaching our findings here, we rely on the planning evidence of Mr Bromhead, which we prefer to the evidence of Mr Wadeson.

67 Access to the site is proposed from O'Herns Road, which is an east west secondary arterial connecting Epping Road in the east to Vearings Road in the west where it presently terminates. Alternative access to the subject site from the unconstructed Vearings Road or Cooper Street was suggested, however the Tribunal finds O'Herns Road is the most practical access. O'Herns Road crosses the Craigieburn Bypass via an overpass with no direct links to the bypass, however, the Tribunal was told this will occur in the future. The road has a 6.4 metre seal with unconstructed shoulders and had previously been used for access purposes to the Whittlesea Council landfill which had operated on the subject land. The site inspection indicated to the Tribunal that the pavement was in fair condition with some breaking up of the pavement edges in some areas.

68 The question of the volume of traffic using O'Herns Road for access to the proposed concrete batching plant and materials recycling facility was discussed at length at the hearing and after requests lead to the Permit Applicant representative tabling figures which indicated 200 trips/day by concrete agitator trucks, 100 trips/day by raw material trucks and dogs, and 30 trips/day by standard vehicles a total of 330 trips/day between 5.30am and 5pm i.e. ll.5 hours. This traffic volume is well within the capacity of O'Herns Road to be accommodated, however, the commercial nature of the majority of traffic could necessitate longer term strengthening and widening of the pavement to 7.4 metres as indicated by expert witnesses and local residents to both improve safety and eradicate dust.

69 The Tribunal finds the best way of achieving that improvement is for the applicant to enter into a Maintenance arrangement with the Whittlesea City Council as there will be other users of O'Herns Road in the future having to contribute to maintenance of the road. In this regard, we rely on the evidence of Mr Allan Bowman (road pavement engineer).

70 In terms of safety measures, the Tribunal's attention was drawn during its inspection of the site to the presence of a crest in O'Herns Road in the vicinity of Cotters Road and the need for appropriate signage and pavement widening by one metre on either side of O'Herns Road for a total distance of 100 metres. The Tribunal accepted those measures as being appropriate given the increased traffic flow anticipated from the proposed use.

71 Traffic noise associated with the proposal and the effect on Andrew Long's residential amenity at No. 330 O'Herns Road and Mr Peter Long's property further to the east were discussed at length during the hearing and lead to a number of changes being made to the proposal by consent (which we have taken into account).

72 The issue of concrete agitator queuing in O'Herns Road prior to the opening of the plant was resolved by agreement to the trucks being garaged on site and the drivers using private vehicles to access the site.

73 In regard to access to the site, the entrance off O'Herns Road will be shifted further west away from Mr Andrew Long's home.

74 The applicant offered to accept a condition limiting trucks leaving the plant before 6.00am and all deliveries to the site being made between 6.00 am and 5.00 pm Monday to Friday and 6.00 am - 5.00 pm Saturdays.

75 The Tribunal finds that whilst there will be some impact on Andrew Long's property amenity at 330 O'Herns Road due to traffic noise associated with this proposed development, the general growth of traffic in the area due to other developments and links from O'Herns Road onto the Craigieburn Bypass will all contribute to increased traffic noise. The question also has to be asked as to how long the Longs will continue to occupy their homes, given overall development pressures in the area.

76 The Tribunal finds the measures proposed by the Permit Applicant including the relocation of the entrance into the site, agitator trucks being garaged on site, limiting trucks leaving the site before 6.00 am and all deliveries to the site being made between 6.00 am and 5.00 pm will all reduce the noise impact of the proposal on the two Long dwellings to an acceptable level.

77 We rely here on the noise evidence of Mr Goddard on noise issues, and note that many, if not all, of the noise concerns raised by Mr Burton more involved potential noise mitigation points rather than constituting a "knockout blow".

Findings of Tribunal - Sunset Date for Permit & 6.00 am versus 7.00 am Start Time for Trucks to Leave the Site

78 On granting a Notice of Decision to Grant a Permit, Council included a sunset clause on the use of ten (10) years, so as to review the situation at that time taking into account the urban growth which has occurred in the area. The applicant has sought fifteen (15) years on the basis of the investment required to get the development up and running and investment in local infrastructure (and also recognising inherent establishment delays).

79 During the hearing there was general agreement from the parties that the period should commence from the date of issue of the permit.

80 In coming to a decision on the time frame for the permit the Tribunal has taken into account on the one hand the broader strategic issues involved and the likely future higher order development of other nearby land, and on the other hand the practical benefits to the proposal having a longer life-span. These benefits include some realistic allowance for the likely delays in having the final plans endorsed by Council and obtaining the necessary EPA Works Approval, together with a longer period to recoup the substantial infrastructure establishment costs (eg water, power and road access both external and internal).

81 On balance, the Tribunal finds that fifteen (15) years is a fair, appropriate and practical timeframe for the use. We do not see a 15 year sunset date as unduly compromising the prospects of any other potential higher order uses that may be emerging at the end of the 15 year period.

82 In terms of starting times for the concrete batching plant, the Tribunal's understanding is that most contractors commence their concrete pours around 7.00 am in the morning and accordingly the Tribunal finds that 6.00 am for trucks leaving the site on a six day week basis is appropriate. For the reasons already set out above, we consider that considerable efforts have been made by the Permit Applicant to regulate its operations to minimise any noise impacts, plus we have indicated some doubts as to whether or not the Longs will realistically remain occupying their dwellings over the longer term (ie given other development pressures).

83 The issue of dust was extensively covered by a range of expert witnesses during the hearing and the concern of respondents particularly Mr Love, Mr Long and Northpoint Enterprise Park were noted.

84 The Tribunal is satisfied that the relocation of the materials recycling facility to a point further south on the site, the requirement for a "Dust Management Plan" to be endorsed and complied with and the requirements of an EPA Works Permit will all contribute satisfactorily to the management of dust emissions on the site. In particular, condition 30 deals with this issue in a very detailed and thorough manner.

Potential Amenity Impacts on Love and Northpoint Properties

85 Mr Love indicated his primary amenity concern was the emission of dust from the concrete batching plant, the stockpiles and the crushing operation.

86 The Tribunal considers that compliance with the Dust Management Plan will ensure amenity conditions in the area are met and that any "litter risks" are quite modest. The Tribunal is conscious of Mr Love's past problems with dust and litter blowing on to his grazing pastures, but it does not automatically follow that "history will repeat".

87 In regard to Northpoint Business Park, the Tribunal's site visit indicates the distance from Northpoint to the subject site plus an extensive vegetation barrier on the boundary between the Northpoint Development and the Love property will reduce the visual impact of the proposed concrete batching plant and materials crushing operation to a minimum. Likewise a Dust Management Plan and earth bunding should minimise any dust and noise impact from the site. The Tribunal also relies here on the fact that the by-pass lies between the subject land and Northpoint.

88 In summary, with reference to the evidence of Mr Bromhead on this issue, we do not accept that the proposal will involve any unacceptable amenity impacts on other nearby properties such as those of Mr Love and Northpoint.

89 The site inspection revealed that the landscape buffer strip along O'Herns Road and on the eastern boundary of the site (albeit with some supplementary planting required) should in our view be adequate for its purpose.

Community Benefits of Having Batching Plant in close proximity to Urban Growth Activity

90 The Tribunal finds there are significant community benefits in locating a concrete batching plant in close proximity to urban growth activity, including reduced travel time and energy use for concrete delivery trucks resulting in lower costs and less environmental impacts.

91 Added to this is the sustainability benefits of using rock and redundant concrete from road excavation in the area as ingredients for concrete production.

Noise Issues Associated with the Concrete Batching Plant and Materials Crushing Facility

92 Keeping in mind the distance to the Andrew Long dwelling from the concrete batching plant, the Tribunal has taken into account measures introduced to minimise noise impact from the plant including a seven metre high noise attenuation wall, use of the office building and the excavation of the proposed plant into the natural surface of the land.

93 In addition the relocation of the materials recycling operation further south on the site together with the earthen bund wall surrounding that operation leads to the Tribunal finding that noise issues on the site have been adequately dealt with.

94 The existing table drain which is located on the outer edge of the landfill cap and falls to the south towards the Love property will be required to have drainage culverts located under the material stockpiles south of the concrete batching plant to ensure continuity of the drainage line.

95 The Tribunal finds the plan to locate a drainage storage basin adjacent to both the existing Leachate Dam and materials crushing facility is a practical way of preventing drainage entering the Love property and provides the opportunity for water reuse in either concrete batching operations or dust suppression measures.

96 A Drainage Management Plan will be required as part of the permit conditions.

97 In conclusion the Tribunal finds the main issues relating to the interim use of the site as a concrete batching plant and materials recycling/crushing facility (namely strategic planning issues, the impact of traffic and traffic noise, landscaping, dust, drainage, landscape and visual intrusion) have been adequately dealt with by the Permit Applicant. In addition, we consider that appropriate additional permit conditions (which occupied the best part of an hour of the Tribunal's time at the end of the hearing) will ensure that the use of the site will have minimum impact on surrounding property owners and will provide benefits to the community in an urban growth area.

98 Hence we have made orders above that a permit issue subject to the numerous conditions.