When approved the plan(s) will be endorsed to form part of this permit.

2 The layout of the site and the size of any proposed buildings and works shown on the endorsed plans cannot be altered or modified unless agreed to by the Responsible Authority.

3 The use of any land or building or part thereof as shown on the endorsed plans will not be altered or modified without the written consent of the Responsible Authority.

4 Landscaping in accordance with the endorsed landscape plan and schedule must be completed prior to the commencement of the use. New planting must be maintained or replaced as necessary.

5 Prior to the commencement of the permitted use and development, a plan of consolidation must be submitted to and approved by the Lands titles office that consolidates land contained in Crown Allotment 58D Parish of Beenak with land known as Lot 1 and 2 on Title Plan 217027H (formerly known as part of Crown Allotment 58A and Crown Allotment 58E Parish of Beenak).

6 Should the proprietor of the land demonstrate to the satisfaction of the Responsible Authority that the permission of the Department of Sustainability and Environment (DSE) will not be granted to access the rear (southern) end of the subject site across crown land from Eucalyptus Drive and therefore pedestrian access to the bore head site cannot be obtained, the applicant must provide to the satisfaction of the Responsible Authority the following amended plans:

a

A detailed site elevation plan showing the location and construction of the proposed pedestrian crossing of the swamp including the following details:

i

Spacing and depth of piers.

ii

Details of what excavation (depth and width) is required for footings.

iii

Height and width of the structure.

iv

Location of nearby vegetation and trees.

v

Materials and method of construction.

7 Prior to the commencement of any building or works, a site management plan must be submitted detailing appropriate measures to restrict sediment discharges from the development areas into the swamp (and other nearby waterways) in accordance with Construction Techniques for Sediment Pollution Control (EPA 1991) and Environmental Guidelines for Major Construction Sites (EPA 1995) to the satisfaction of the Responsible Authority.

8 Prior to commencement of any building or works, a Management Plan for the Scented Paperbark vegetation community, and other remnant vegetation on the site, including the Dry Sclerophyll remnants shall be prepared to the satisfaction of the Responsible Authority, which addresses:

a

the monitoring of the ground moisture level in the vicinity of the Scented Paperbark assemblage on the site, together with the provision of a system designed to maintain an acceptable moisture level;

b

monitoring of the hydrogeological regime in the vicinity of the Scented Paperbark vegetation community in accordance with condition 9.

c

a weed control program (and actions for its implementation) within the Scented Paperbark area, particularly targeting Ragwort, Blackberry and English Ivy with non-harmful techniques given the sensitivity of the wetland ecosystem to chemical sprays (eg. Herbicides);

d

the Owner undertaking or causing to be undertaken research into the environmental conditions required for the minimisation of potential adverse impacts to and long term viability of the Scented Paperbark assemblage. This research should include (but not be limited to) investigation of soil characteristics, the effects of groundwater extraction, reproductive strategies of the Scented Paperbark and the specific requirements and ecological tolerance of Scented Paperbark to changes in hydrology and the viability of a watering program;

e

the final design of any works (particularly new roads and the restoration of disused roads) in the vicinity of the Scented Paperbark assemblage to ensure minimal impact on the vegetation in that assemblage, including limiting access and taking measures to protect the assemblage from physical damage;

f

further review and modifications to this management plan to incorporate the conclusions of the research referred to above.

When approved the management plan(s) shall be endorsed to form part of this permit.

9 Monitoring shall be prepared under condition 8 of this permit in accordance with outcomes of the Scented Paperbark management plan. Monitored observations and records shall be kept by the operator and occupier of the site for a period of at least 5 years and shall be provided to DSE, Southern Rural Water Authority and the Responsible Authority on an annual basis.

10 Any mechanical pump installed for the filling of tankers on the subject site must only operate within the hours of 6.00am and 6.00pm, Monday to Sunday.

11 Any mechanical pump for the filling of tankers must be housed within a sound insulated enclosure to limit transference of noise to adjoining properties.

12 Water cartage trucks may only access the site between the hours of 6.00am to 6.00pm, Monday to Sunday.

13 All stormwater discharged from the tanker filling area, vehicle access ways, vehicle parking areas and pedestrian access ways shall be conveyed by means of formed drains to a legal point of discharge or absorbed onsite to the satisfaction of the Responsible Authority. The legal point of discharge shall be Learmonth Creek, and the discharge point shall be subject to approval of Melbourne Water.

14 Prior to the commencement of any works covered by this permit, Engineering plans showing all works in Little Yarra Road, vehicle parking, driveways, access ways and drainage, including detailed earthworks for earth banks, shall be submitted to the Responsible Authority for approval.

15 Prior to the occupation of the permitted development, a right turning lane including a sealed entrance shall be constructed in Little Yarra Road at the entrance of the site to the satisfaction of the Responsible Authority and VicRoads.

16 Prior to the occupation of the permitted development, all parking areas and vehicular access ways shown on the endorsed plan shall be constructed with crushed rock surface, drained and delineated to the satisfaction of the Responsible Authority.

17 The construction of all internal civil works, including vehicle parking, vehicle access ways and drainage is to be in accordance with the approved plans and to an engineering standard to the satisfaction of the Responsible Authority.

18 Prior to commencement of any works written confirmation from the owner/developer shall be provided that during construction of the permitted development no construction or earth moving vehicles are to use Eucalyptus Road or Tea Tree Lane, to the satisfaction of the Responsible Authority.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

The following Respondent/Objectors appeared in person:

Ms C. Small, Mr M. Willmott, Mr W. Hacektt, Mr A. Hoult, Mr B. Eagle

Application under s 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

Construction of a pipeline, water tanks and driveway.

Yarra Ranges Planning Scheme - Green Wedge Zone (GWZ5)

Erosion Management Overlay

Significant Landscape Overlay

Wildfire Management Overlay

1 On 26 February 2002, Southern Rural Water issued groundwater licence No. 9016348 allowing the annual extraction of 150ML of water from the review site. The licence was subject to a number of conditions including the following restriction:

3. (a) Whenever the Authority is of the opinion that the taking of groundwater under this licence may injure or adversely affect any other person, or an aquifer, or the environment, the Authority may give notice to the Licensee to -

(i) reduce the quantity of groundwater taken during such period or periods and to such extent as the Authority directs.

(ii) cease taking groundwater entirely or during such period or periods and to such extent the Authority directs.

2 The licence will expire on 30 June 2016.

3 The then land owner subsequently sought a planning permit to establish a water bottling plant on the site. The responsible authority refused the application on the following grounds:

1. The proposed use and development is inconsistent with the local planning policies for rural areas and for the establishment of industrial and commercial uses within those areas.

2. The proposed use and development is contrary to the objectives of the Rural zone, through the introduction of an industrial use.

3. The proposed use will have an adverse impact on the residential amenity of the Powelltown township, through the:

•

24 hour operation of the plant;

•

emission of unacceptable levels of noise and smell;

•

the effects of increased traffic (particularly trucks) on the Little Yarra Road;

•

the intrusive bulk of an industrial building on to the landscape of a rural township.

4 In June 2002, on review by this Tribunal, the applicant succeeded in obtaining a planning permit subject to a number of conditions. At para 57 of the decision, the following passage appears:

57. A number of issues were raised by the objectors and in part by the Responsible Authority in relation to the amount of groundwater to be extracted from the site and the likely impacts this could have on the flow of the Learmonth Creek and on the remnant stand of vegetation within the site particularly the Scented Paperbark remnant, recognised as being of regional significance. The Tribunal as stated previously does not consider that the issues of the amount of water to be extracted and the likely effect of the extraction are matters relevant to or within this Tribunal's discretion of consideration. The relevant Water Authorities are the appropriate bodies to consider such issues at the time of an application for the required licence under the Water Act 1989. With regard to possible impact on the remnant vegetation the Tribunal considers that proper management of vegetation on the site should be required to ensure that the proposal does not impact on the remnant vegetation. Submissions in this respect were not disputed by the applicant and we were presented with evidence demonstrating that the applicant had undertaken extensive research into the impact of the proposal on the remnant vegetation and is committed to implementing a rigorous research, monitoring and management regime designed to protect that vegetation. We are satisfied that with the imposition of appropriate permit conditions, the remnant vegetation on the site is capable of being adequately protected.

(See Learmonth Springs Pty Ltd v Yarra Ranges Shire Council, Hackett & Ors (2002) 12 VPR 186).

5 The subject site is located at the western end of the township of Powelltown on the southern side of Little Yarra Road. The land is rectangular in shape and runs north/south. The total area is approximately 10 hectares which can be divided visually into two sections, the front section being part of the valley floor of the Little Yarra River and its tributaries including Learmonth Creek. This area is relatively clear pasture land and has been used for grazing for some time. A dwelling and cattle yards are located in this area towards the frontage of the site. The visual division of the land is at the point where an area of approximately 1700m2 of wetlands traverses the site, and beyond this area where the land rises steeply at the rear and abuts the State forest.

6 To the west of the site frontage is a single dwelling and behind also to the west is a Department of Sustainability and Environment (DSE) depot comprising a work yard and a single storey building. To the east are the rear yards of five single storey dwellings. Further to the east is the sawmill and football oval. To the north, directly opposite the site on the other side of Little Yarra Road, is a public picnic ground.

7 The original concept of constructing a water bottling plant has since been abandoned and it is now intended to extract the water through the use of bores, pump it into tanks and transport it elsewhere for processing. The present application involves permission to construct a pipeline, water tanks and a driveway access point. The following information was submitted in support of the application:

infrastructure to transfer and store 0.055ML/day of groundwater (16.5ML/year);

the extraction of the 0.055ML of groundwater would take place over 8 hours;

extracted groundwater was to be pumped to and stored in a 100,000 litre stainless steel storage tank;

the stored water would be subsequently transported by semi-trailers from the Land. Two loads per day - Monday to Saturday (7.00am to 6.00pm);

access to the Land for the trucks would be via Little Yarra Road (existing entrance);

no permanent employee would be on site, the trucks would be loaded by the drivers;

two existing bores, both within approx. 30 metres of the Riparian Thicket, would be utilised; and

8 In response to two further requests for further information, the applicant responded by advising of the following changes:

two 92,000 litre tanks would be installed to the south-east of the Scented Paperbark community;

a pedestrian bridge across the eastern end of the Scented Paperbark community;

maximum of 12 truck movements per day (24 hours a day);[1]

new road access at the north-east corner of the Land;

grading the track from Eucalyptus Drive to the tank site; and

and increase the volume of groundwater extraction to 45ML/year;

the relocation of the tanks to a position north of the Scented Paperbark community, towards the eastern boundary;

trucks would be filled by way of a pump rather than gravity;

the addition of landscaping in the vicinity of the filling station, tanks and frontage of the Land;

power supply extension across front setback of the Land;

provided a Site Layout Plan prepared by SKM dated 12 September 2006 [pg 101 Documents];

provided a Site Masterplan prepared by THA Landscape Architects (12/9/06); and

provided a cross section and gateway elevation prepared by THA Landscape Architects (12/9/06).

revision of the Site Masterplan prepared by THA Landscape Architects (13/9/06) by way of enlarging the turning area; and

revision of the cross section and gateway elevation prepared by THA Landscape Architects (13/9/06) by way of revision of the text.

10 The responsible authority failed to determine the application within time and a review was sought. On 14 November 2006 the responsible authority resolved that, had an application for review not been lodged, it would have refused to grant a permit on the following grounds:

The proposal is contrary to the objective of Clause 15.01 of the Yarra Ranges Planning Scheme in that it does not assist in the protection and, where possible, restoration of catchments, waterways, water-bodies and groundwater.

The proposal is not considered to be a sustainable land use given it would permit the permanent removal of water resources and is therefore inconsistent with the provisions of Clause 21.06 of the Yarra Ranges Planning Scheme and the Green Wedge Zone.

The proposal is inconsistent with Local Planning Policy 22.03 Rural Areas in that it will permanently affect the potential for the land to be used in accordance with the prime purpose of the Green Wedge Zone.

Insufficient information has been provided to demonstrate that the proposal will not have a significant on-site and off-site impact on the environment and is therefore inconsistent with Clause 65.01 of the Yarra Ranges Planning Scheme and Section 60(e) of the Planning and Environment Act 1987.

The proposal is inconsistent with Objective 2 of Clause 21.07 which states that the use of land must be of a type and scale so as not to adversely impact on the natural environment.

The proposed hours of operation, being 6am to 6pm Monday to Sunday will introduce an unacceptable level of intrusion on neighbouring residences through heavy vehicle traffic and noise.

The proposed construction of a pedestrian crossing of the creek is unnecessary given that alternative access options are available and is likely to further disturb the swamp environment.

The proposal will facilitate the ongoing removal of a water resource from the local community with no subsequent community benefit being provided and as such is inconsistent with Clause 21.04 which seeks to encourage and facilitate the establishment of businesses which have little or no impact on local amenity or the environment, and which provide employment and business opportunities, especially for people living in the small townships.

11 On the hearing both Mr Pridgeon and Mr Cicero tabled and read written submissions. Mr Pridgeon called evidence from Ms Irena Krusic-Hrustanpasic, a Hydrogeologist. Her evidence was to the effect that, based on the documentation made available to her, there was insufficient hydrogeological data to estimate the shape and extent of groundwater lowering likely to occur as a result of the proposed extraction and, as a consequence, it was not possible to assess the potential impact on the environment.

12 Mr Cicero called evidence from the following persons:

•

Dr N. Broner, an acoustic consultant.

•

Mr D. Stanley, a hydrogeologist.

•

Mr P. Kelly, an expert in ecological assessment.

13 All four witnesses tabled written statements of evidence that had been circulated prior to the hearing in accordance with the Tribunal's Practice Note.

14 While the Tribunal will deal later with the expert evidence, it is convenient to note that the witness called by Mr Pridgeon appears to have been placed in a most unfortunate position. There was abundant material available on hydrogeological issues, and much of this was submitted to the Tribunal in the 2002 proceedings. Indeed, Mr Stanley told the Tribunal that the material supplied to Southern Rural Water in 2001 in support of the extraction licence application was among the most comprehensive documentation of that kind that he had ever encountered. Why this material was not provided to Ms Krusic-Hrustanpasic remains something of a mystery.

15 At this point, something needs to be said regarding the principles surrounding "repeat appeals". In Amoco Australia Ltd v Berwick CC (1983) 1 PABR 167, the following passage appears:

The Board supports the view expressed by the Town Planning Appeals Tribunal in Watkins v MMBW (1977) 9 VPA 184 at page 187:

"We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos could occur with unsuccessful parties applying and appealing time after time.."

A similar view was expressed by the Tribunal in Burns v. MMBW (No 4) (1976) 4VPA 251, R Diskin-Evergreen Pty Ltd v MMBW (1976) 8 VPA 141, and Millington v. City of Sunshine (1976) 10 VPA 192.

In summary, then, the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view.

16 It is perhaps noteworthy that the Board in that case was chaired by the now President of VCAT, Justice Morris. The principle espoused in the above passage has been universally adopted by the Tribunal over time.

17 What then are the changes in circumstances that might warrant a different view of this matter. It is true that the nature of the application has changed, that the zoning of the land has altered from "Rural" to Green Wedge" and that the proposal can no longer be balanced against the prospect that it may offer some local employment opportunities. It is also true that the State is undergoing a period of drought although, one might think, that prospect would always be in the mind of any decision-making body involved with the use of water resources. However, a number of the objectors' present concerns were indeed dealt with in the Tribunal's previous decision. These include:

•

the visual impact of the infrastructure (paras 39-44);

•

noise from truck traffic (paras 46-47);

•

safety considerations (paras 53-55).

18 In assessing these particular issues, it is appropriate then to have regard to the Tribunal's previous findings.

19 The main issues raised by the parties can conveniently be reduced into the form of four questions. These are:

•

Will there be adverse impacts to the environment?

•

Is the visual impact of the proposal unacceptable in the Green Wedge Zone?

•

Will the area be adversely affected by noise?

•

Will the additional traffic generated create an unacceptable safety risk on Little Yarra Road?

20 To obtain a permit, the applicant must establish that each ground should be answered in the negative. We turn now to examine these issues.

Will there be adverse impacts to the environment?

21 A number of objectors expressed concern over the proposal in respect to the extraction of groundwater and potential impact to Learmonth Creek, consequently the town water supply and to the Scented Paperbark thicket. In relation to the matter of whether we would consider the validity of the groundwater extraction, we adopt the position of the previous Tribunal, being:

23 The Tribunal considers that in relation to the extraction of groundwater there is no requirement for a planning permit under the planning scheme. There is specific legislation namely the W A [Water Act] that deals with water and in particular the extraction of groundwater. Because there is no reference within the planning scheme to the extraction of water this does not result in the need to treat extraction as a use that does require a permit. There is a specific authority and specific legislation which has been enacted by Parliament to deal with the taking and use of water and this is dealt with by way of a licence system. The Responsible Authority in relation to the planning scheme is not the responsible authority in relation to the consideration of issues associated with the taking and use of water under the W A.

22 It was the position of the applicant and Council that having regard to the planning scheme, the matters that could be considered by this Tribunal were whether the proposal could have a detrimental impact on the environment. In this respect the impact to the swamp or Scented Paperbark wetland area is of principal concern. Concerns relating to potential impacts on water supply and stream flow are ones that are outside the jurisdiction of this hearing and as we noted, appear to be addressed by the groundwater extraction licensing authority Southern Rural Water in their conditions of licensing.

23 Expert evidence was presented by the applicant in respect to the hydrogeological and ecological aspects of the site. We acknowledge that the hydrogeological work undertaken by Mr Stanley and his team was principally focused on assessing the sustainability of the resource. However the potential impact to the groundwater levels beneath the swamp was also evaluated.

24 We accept the evidence of Mr Stanley that in general terms the hydrogeological conditions have been assessed sufficiently to establish the broad characteristics of the site. It is apparent that groundwater is a major source of water to the swamp. It is also apparent that under the proposed groundwater extraction regime the groundwater levels beneath the swamp will be affected.

25 Mr Stanley's evidence was that based on very conservative modelling of the groundwater behaviour during pumping, a drop in groundwater levels by up to 3m could occur 30m from the extraction point and by 1m at a distance of up to 200m. The reality of the situation may however be different as the behaviour of the groundwater levels at any point in time will be dependant on a number of factors. These factors include preceding rainfall, the rate of groundwater extraction and the number and location of bores to be used for extraction.

26 Not withstanding that a drop in groundwater levels can be expected beneath the swamp, it is unclear what the impact will be to the Scented Paperbark thicket. It was Mr Kelly's evidence that these trees could withstand some drying of the underlying peat. It was also his evidence that the peat had a strong potential to retain moisture even under dry conditions (as evidenced from his site inspection in November of 2006 where Mr Kelly almost disappeared from view). Mr Kelly noted that the trees were of an even age suggesting the growth was in response to an event (possibly a bushfire) that had removed earlier vegetation and that this growth was a response to the existing moist peaty soil conditions.

27 Given the evidence of both experts, it is difficult to project the exact behaviour and impacts groundwater pumping will have on the thickets. However, we accept from Mr Kelly that the tree species is a hardy one and that if impacts are observed, the cessation or change in pumping patterns that allow recovery of the groundwater levels (as indicated from Mr Stanley's evidence) could bring about the recovery of the thicket. Thus the consequences of unexpected or unanticipated conditions may be redressed by virtue of the conditions of the existing groundwater licence.

28 We are therefore satisfied that through appropriate planning conditions and the existing groundwater licence conditions, the potential impacts can be adaptively managed through a monitoring regime.

29 In our view the present proposal will have a negligible impact on the visual amenity of the neighbourhood. The water tanks and other infrastructure will be located approximately 240m from Little Yarra Road and over 100m from the termination of Eucalyptus Drive. Earth mounding and landscaping will be constructed to supplement existing vegetation. The works now proposed are far less intensive than those approved by the Tribunal in the 2002 application.

30 The Tribunal finds no reason whatsoever to refuse the permit on this basis.

31 There are two potential noise sources, those being the noise generated by trucks entering and leaving the site, and second the use of the pumps.

32 The evidence of Dr Broner concludes with the following summation:

Noise level measurements were conducted using the B-double truck proposed for use at the proposed site. The data showed that idling noise would comply with the Noise Limit whilst truck noise due to driving to and from the water supply pumps would result in a marginal exceedance. It is recommended that a 2.7 metre high partial acoustic barrier be constructed to achieve the necessary dBA reductions to comply with the Draft No N-3 Policy requirements for the Night-time period 0600 to 0700.

33 There was some was suggestion by objectors that the noise of trucks using Little Yarra Road would be excessive and cause annoyance. Truck traffic however is entitled to use Little Yarra Road and there are no EPA policy requirements that govern this aspect of the proposal. The Tribunal does not consider that the noise created by a limited number of truck movements will have any perceptible impact on the acoustic environment. It is also noteworthy that the trucks will not operate beyond 7.00pm.

34 We accept Dr Broner's evidence that the use can be made to comply with the provisions of EPA Policy N3/89 and we will impose a condition requiring that the use comply with that policy.

35 As the pumps will be enclosed in acoustically sealed units, we do not believe that the noise emanating therefrom will be audible from nearby residences which are situated a considerable distance away.

36 Mr Eagle expressed concern regarding the adequacy of Little Yarra Road to cope with B-double truck movements. Little Yarra Road however is a designated route for this type of truck traffic and it would be beyond the Tribunal's power to prevent vehicles of this kind from using that road. Vic Roads is the appropriate body for determining such issues. It has not expressed any interest in attending this hearing.

37 The Country Fire Authority is a referral authority pursuant to the provisions of the Planning and Environment Act 1987. However, the responsible authority failed to refer the application. As a consequence, by correspondence dated 6 December 2006, the Registrar of the Tribunal advised the CFA of this application. As of 21 December 2006, no response had been received.

38 It is important to understand that the Tribunal's consideration of this matter is necessarily confined to those aspects for which a planning permit is required. The objectors, understandably, have concerns relating to water flows into Learmonth Creek and beyond. However, these concerns do not fall within the Tribunal's jurisdiction. As to the rest, it can be seen from the preceding analysis that the Tribunal sees no justification at all for refusing to grant a permit for those aspects of the proposal which are now before us.

39 Accordingly we intend to grant a permit subject to conditions.

[1] In submission Mr Cicero indicated the applicant's desire for operation of 7 days per week with truck movements limited to 6.00am to 7.00pm on each day.