Clause 32.01-4: A permit is required to construct two or more dwellings on the land.

Clause 52.29: A permit is required to create or alter access to road in a Road Zone, Category 1.

Clause 52.17: A permit is required to remove, destroy or lop native vegetation.

The site is triangular in shape with an area of approximately 2.12 ha. The site is bordered by Sunshine Avenue to the northeast, the Western Metropolitan Ring Road to the south east and a residential estate to the West.

An electricity easement and overhead transmission lines within the easement are located along the site's south eastern boundary. The site is relatively flat and covered in grass and a few trees.

Adjacent residential land to the west comprises mainly single dwellings.

On the opposite side of Sunshine Avenue, there is a petrol station. To the north and on the eastern side of Sunshine Avenue is land known as the Barro site. This site comprises an exhausted quarry pit, which has not been rehabilitated, a concrete batching plant, concrete and rock crushing and materials recycling facilities. A non-putrescible landfill is proposed for this site. A portion of the site further to the north abuts the Maribyrnong River Valley.

Also on the opposite side of Sunshine Avenue, located roughly between and behind the Barro site and the petrol filling station, is vacant industrial land that has previously been used as a landfill operation. This land is known as Cook's land.

To the north of the site, on the north west corner of Sunshine Avenue and Main Road East, is a commercial centre comprising a hotel, medical centre, pharmacy and shop.

Rojin Investments Pty Ltd v Brimbank CC [2012] VCAT 67, Victorian National Parks Association Inc. and Mineral Policy Institute v Southern Grampians Shire Council & ors [2004] VCAT 20, Great Southern Property Managers Limited; Timbercore Ltd v Colac Otway Shire Council [2006] VCAT 706, Burnsbridge Services Pty Ltd v Greater Bendigo City Council & Ors (2005) VSC 422, Barro Group Pty Ltd v Brimbank CC [2011] VCAT 1099

1. Sunshine Investments Pty Ltd applied to the council to construct 67 dwellings at 53 Sunshine Avenue, St Albans.
2. The council gave notice of the application and objections to the application were received from two local residents, and from the Barro Group who operate the concrete batching plant, concrete and rock crushing and materials recycling facilities in the quarry pit, opposite the site on the north eastern side of Sunshine Avenue.
3. The application was also the subject of a number of referrals to external authorities, none of which objected to the grant of a permit subject to the imposition of conditions on any permit issued.
4. The council resolved to refuse the application on the following grounds:
   1. The proposed development is inconsistent with the provisions of the State and Local Planning Policy Framework, including the municipal strategic statement, Clause 13.04-2 Air Quality, Clause 17.02-1 Industrial land development, Clause 2I.07, Clause 5.10 and Clause 55) and does not satisfy the objectives of Clauses 32.01, 55 and 65, of the Brimbank Planning Scheme.
   2. The proposal has the potential to offer a low level of amenity for future residents given the proximity to the industrial operations conducted on the site of the former Sunshine Quarry and may create future land use conflicts.
   3. The introduction of a sensitive use within a threshold buffer specified at Clause 52.10 has the potential to expose future residents to unreasonable levels of dust emissions and noise.
   4. The proposal fails to satisfy Standard 24 - Noise Impacts of ResCode (Clause 55),
   5. The flora report prepared does not allow for a proper assessment of the appropriateness of the removal of native vegetation.
   6. The site layout has not been designed to appropriately accommodate refuse vehicles.
5. When refusing the application, the council also resolved to investigate the feasibility of rezoning the land to an alternative that limits sensitive uses on the site.
6. The following amended grounds of refusal were subsequently adopted by the council:
   1. The distance between the proposal and the former landfill located in the vicinity of land known as 104 Davies Avenue, Kealba, and the industrial operations (materials recycling and concrete batching) conducted on the site of the former Sunshine Quarry has the potential to result in environmental and or amenity problems created by siting incompatible land uses close together, contrary to:

a. Section 4 (objectives);

b. Section 60 (matters must a Responsible Authority consider);

c. Clause 10 (operation of the State Planning Policy Framework);

1. Clause 17.02-1 (Industrial land development); Clause 19.03-5 (Waste and Resource Recovery);
2. Clause 21.07 (Industry and Business); Clause 32.01 (Residential 1 zone);

j. Clause 52,10 (Uses with Adverse amenity potential);

1. Clause 55 (Two or more dwellings on a lot and residential buildings); Clause 65 (Decision Guidelines); and

m. Amendment C93 (Pending approval of the Minister).

1. The proposal fails to satisfy standard B24 noise impacts of Clause 55.
2. The flora report prepared does not allow for a proper assessment of the appropriateness of the removal of native vegetation.
3. The site layout has not been designed to appropriately accommodate refuse vehicles.
4. The permit applicant has applied to the Tribunal for a review of the council's decision.
5. One of the objectors, the Barro Group, did submit a statement of grounds and was a party to this proceeding. During the course of the hearing however, the Barro Group's counsel, Mr Gobbo QC, applied to the Tribunal to withdraw from the proceeding. At the time of the request to withdraw Mr Gobbo had cross examined witnesses, presented his submissions and led evidence from Mr Govenlock.
6. The issues in this case are complex. They encompass matters about the risk to human life and health posed by the migration of gases from landfill sites, the consideration of amenity and reverse amenity impacts, and the extent to which engineering solutions can be applied to resolve these issues. Wider planning policy issues are also at play in this case. Is it appropriate to permit sensitive uses on land located close to existing land uses that have the potential to give rise to off site amenity impacts? What weight ought to be accorded to a pending application for a new landfill on the site of the existing quarry? How are these issues resolved in circumstances where the land is zoned Residential 1 and a permit is not required for the land to be used for residential purposes, a use which is clearly a sensitive use?
7. In this case, the land is zoned Residential 1 and the use of the land for a dwelling does not require a permit under that zone. The site is a large site on the edge of an existing residential area. The site is generally flat, and while a permit is required for the removal of native vegetation, neither the council nor the referral authority (DSE) has pursued this aspect of the application as a basis for refusal. The site enjoys access from main roads, and it is proximate to commercial facilities. Unlike many applications for medium density housing developments that come before this Tribunal, the proposal does not raise any significant issues about neighbourhood character and amenity impacts such as overlooking, overshadowing, visual bulk and the like. The proposal would contribute toward the achievement of housing and urban consolidation policies. Permits have previously been issued for the residential use of the land.
8. And yet in this case, the council is vigorously opposed to the grant of a permit.
9. The council's opposition to the proposal arises from the following considerations:

1. The site is close to a former landfill operation conducted on land to the east. The council is concerned about the potential for landfill gas to migrate toward the review site and create an unacceptable risk to the health of future occupants of the proposed dwellings. 2. The site is located close to an exhausted quarry pit, which has not been rehabilitated, and in which there is a concrete batching plant, concrete and rock crushing and materials recycling facilities. A non-putrescible landfill is proposed for this site. The council is concerned that the continuing use of that site and the prospect of it being used for a non-putrescible landfill in the future, has two undesirable impacts. Firstly there is a concern that future residents of the proposed development will experience unacceptable amenity impacts (primarily noise and dust impacts). Secondly the council submits that the encroachment of residential uses close to the Barro site is not consistent with the policies of the planning scheme which seek to achieve an appropriate separation between incompatible land uses, both for the benefit of future residents and for the viability of the use generating the off site amenity impacts.

1. Additional site context issues militate against the grant of a permit for 67 dwellings on this site. These include the site's proximity to the petrol filling station, the Western Metropolitan Ring Road, other industrial land uses in the area, and the high voltage overhead power lines traversing the site.
2. The applicant acknowledges the constraints that affect the development of this site, but submits that none of those constraints is insurmountable, and all are capable of management through a combination of engineering practice, site monitoring and investigation, and acoustic treatment. The applicant submits that with respect to the Barro site, its operators have an obligation and a demonstrated ability to conform to appropriate standards that are intended to ensure that potential offsite amenity impacts associated with the uses carried out on the Barro site, are contained within acceptable limits. The applicant submits that this proposal is unlikely to prejudice the future use and development of the Barro site.
3. We have concluded that a permit should not issue for this proposal. We have reached this conclusion notwithstanding the Residential 1 zoning of the land and the fact that under that zoning no permit is required to use the land for dwellings. We are satisfied that a nexus exists between the intensity of the proposed development of the land and the need to consider whether the land should be used and developed in the manner proposed. Having regard to the context of this site and the various constraints affecting it, in particular the prospect of the adjacent quarry obtaining approval for a non-putrescible landfill in the future, the introduction of residential uses at the intensity proposed is an outcome that is not consistent with the balanced application of planning policy for this locality.
4. Our reasons are set out below.

1. The most significant constraints that affect the development of this site for residential purposes assume two broad characteristics.
2. Firstly the site is located close to a former landfill, and concerns are expressed about the potential for gas migration from this site to pose an unacceptable risk to human life and health if the review site is developed and used for residential purposes.
3. Secondly an exhausted and un-rehabilitated quarry pit is located on the eastern side of Sunshine Avenue, opposite the review site. Within that quarry pit, a concrete batching plant, concrete and rock crushing and materials recycling facilities are currently operating. A non-putrescible landfill is proposed for this site.
4. Each of these constraints have a different but also a cumulative affect on the review site. We will address each issue in turn.

1. The review site is located proximate to a former landfill on land known as Cook's land that is located about 390 m from the closest boundary of the review site. The review site's proximity to a landfill is not in itself an unusual occurrence in metropolitan Melbourne. In recent years however, an increasing awareness of the potential problems associated with developing land for residential purposes on sites close to existing or former landfills, has emerged. These problems are largely a function of the presence of methane gas in landfills, and the potential for it to migrate offsite, creating a risk to human health and life in circumstances where people are living in areas affected by the methane gas migration.
2. The increasing awareness of methane gas migration as a serious issue for councils and other regulatory bodies, in their decision making about planning applications for residential developments close to landfills, probably came to a head following the experience of the Brookland Greens estate in Cranbourne[1]. Subsequent to Brookland Greens, the EPA released publication 7881, 'Best Practice Environmental Management Guidelines for Siting, Design, Operation and Rehabilitation of Landfills (BPEM) dated September 2010. The BPEM is a guideline document that, among other things, sets out on-going requirements for landfills post closure to ensure that issues such as leachate and gas emissions continue to be monitored and dealt with until waste within the landfill has sufficiently settled. The BPEM specifies buffer distances for buildings and other structures associated with sensitive land uses to landfills that have been closed. The BPEM states:

Buffer distances are set to reflect the potential impacts from landfilling activities. The post-closure buffers are set to manage landfill gas impacts, including the risk of explosion and/or asphyxiation. Landfill gas potential risks remain for at least 30 years post closure.

1. Buffers are measured from the sensitive land use to the edge of the closest cell[2]. The council submits that the landfill on Cook's land is most appropriately classified as a Type 2 landfill[3] that requires a buffer distance from the landfill (minimum 30 years post closure) of 500m from buildings or structures[4]. It is the evidence of Mr Bajwha, however that the council's assessment of the landfill type is not supported and that a 200 m buffer could be appropriately applied retrospectively to the landfill.
2. Where consideration is being given to planning permit applications for sensitive uses within the buffer distance, the BPEM states that decision makers need to be provided with sufficient information by the proponent to satisfy them that the proposed new development will not be adversely impacted by its proximity to the landfill site[5].
3. Following the experience at Brookland Greens, this council has adopted a proactive approach to managing the potential methane problems where former landfills are located close to residential development. The council relies on the BPEM as a guideline to assist it in considering applications in circumstances where the site is proximate to a landfill.
4. In this case, a private company that is now deregistered operated the landfill on Cook's land between 1981 and 1990. The landfill exhibits characteristics that have encouraged the council to adopt a cautious and conservative approach to the consideration of this application. In broad terms there is a degree of uncertainty about the nature and extent of the landfill, how it was managed, what material was deposited and how successfully the land has been rehabilitated. Attempts by the council to obtain comprehensive data and an understanding about the actual risk posed by the landfill, have not been entirely successful. What is known about the landfill however is that it is generating landfill gas and it is generating leachate. Similarly, it is known that the landfill has no gas collection and venting/flaring system, no leachate collection and treatment/disposal system, and no groundwater, leachate or landfill gas monitoring network.
5. It was the evidence of Mr Rehfisch that the landfill is likely to present a low risk to the review site given its scale, distance from the review site, and age of the landfill. Without the backing of a risk assessment however, it is Mr Rehfisch's evidence that the level of risk could be conservatively viewed as moderate[6]. Mr Rehfisch concluded that in the absence of data to quantify the risk, it is prudent that a landfill gas risk assessment be undertaken. Mr Bajwha and Mr Rehfisch are largely in agreement with respect to the level of risk posed by the landfill, but disagree as to the level of additional assessment required to satisfy a decision maker that the development of the review site would not pose an unacceptable level of risk to future residents of that site.
6. Consequently, the council submits that further assessment is required to be undertaken prior to a decision about the suitability of the review site for residential development. The council further submits that there are matters that need to be resolved between the EPA and the owner of the landfill with respect to the ongoing management of the site, monitoring and reporting functions.
7. The council has in recent times, imposed conditions on permits for residential developments adjacent to other landfill sites in the municipality, which in effect, require the owner of the land to undertake an assessment of the potential presence of methane beneath the land and to prepare a risk assessment report, prior to the development commencing[7].
8. The permit applicant in this case indicated an acceptance of that condition on a permit. It is the council's submission however, given the uncertainty about the nature and extent of the landfill on Cook's land, the consequential uncertainty about the level of risk associated with that landfill, and the very slim prospect of the EPA successfully achieving ongoing management and monitoring of the landfill, the condition agreed to by the applicant is not sufficient. In effect, the council submits the risk assessment ought to be undertaken prior to a decision being reached about the development of the review site.
9. On the eighth day of the hearing, the applicant requested and was granted with the consent of the parties, an adjournment of the hearing to enable it to undertake investigations to determine whether the potential for landfill gas to migrate from the landfill on Cook's land would cause an unacceptable risk to human health.
10. Upon resumption of the hearing, we were advised that the applicant had undertaken the necessary testing, and the results had been provided to the council. The council's expert consultants had assessed those results. The council is now satisfied that the migration of methane gas from the landfill on Cook's land does not pose an unacceptable level of risk to future residents of a residential development on the review site.
11. Based on the results of the applicant's investigations, and the council's assessment of those results, the ground of refusal relating to that matter is no longer pursued by the council.
12. The circumstances of this case raise some relevant issues for the consideration of future applications for residential developments (or other sensitive uses) adjacent or proximate to landfills.
13. In the wake of the Brookland Greens experience, this council has taken a proactive approach to the consideration of these issues. It has undertaken an audit of landfills within the municipality, has adopted a framework for considering applications, and has actively sought to implement the recommendations of the BPEM, wherever possible. In some cases, a condition has been imposed along the lines of that found to be acceptable in Rojin.
14. We endorse the comments of Member Cimino in Rojin with respect to the adequacy, or rather the inadequacy of the statutory regime as it currently applies in circumstances where land is currently zoned and/or used for residential purposes. Mr Cimino said:

I acknowledge that the land is already used for residential purposes and that this can continue without a permit as can its redevelopment for one dwelling. The statutory regime in place is far from ideal. It is not dissimilar to situations where there may be some prospect that land is contaminated, but no EAO exists. If zoned residential such land can be redeveloped for a dwelling; however, if more intense redevelopment requiring a planning permit is proposed, then it is appropriate that the environmental conditions of the site be assessed as appropriate. The situation here is similar. The proposal involves the construction of new buildings that will intensify the use of the land and it is appropriate that some assessment of the risk be made for the reasons outlined earlier[8]

1. While this council has taken a proactive and strategic approach to the consideration of the impact of landfills, the missing link between the council's strategic approach and the implementation of its policies, is the lack of a planning scheme control which identifies potentially affected land and puts in place appropriate mechanisms for addressing relevant issues. A control along the lines of an Environmental Audit Overlay would seem to be appropriate[9]. The introduction of such a control would have the added benefit of alerting prospective purchases or existing residents of the site's proximity to a landfill, and the potential consequences of that.
2. In this case, because of the lack of information about the landfill on Cook's land, the approach urged on us by the council, and ultimately adopted by the applicant, is the preferable approach. It will not always be necessary for the applicant to undertake the level of investigations ultimately undertaken by the applicant. The judgement about what level of investigation is required, is most appropriately carried out in each individual case. For the reasons outlined above, in this case investigations to determine the level of risk prior to the decision about the development of the land, was preferable. In other cases, where more is known about the source of the risk, the condition imposed by the council in Rojin, would seem appropriate.

1. The Barro land is located on the opposite side of Sunshine Avenue. It is zoned Industrial 1 and Special Use Zone 3. The site covers an area of 55 ha, and is bound by Sunshine Avenue, the Maribyrnong River, McIntyre Road and Main Road East.
2. The site comprises an exhausted quarry pit, which has not been rehabilitated. Current operations on the site include a concrete batching plant, concrete and rock crushing and materials recycling facilities. The southern most portion of the Barro land on which industrial operations are being conducted, is about 100 m from the closest boundary of the review site.
3. Importantly, a non-putrescible landfill is proposed for this site. The landfill is proposed to be located on the northern part of the site. Approximately 3.5 million m3 of air space is available on the site and, we were advised, a timeframe in excess of 30 years and up to 80 years is contemplated for the landfill.
4. The status of that proposal is somewhat complicated. A planning permit (no. P990025) has previously been issued for the landfill and two cells have been constructed for the purpose of receiving solid inert waste. An EPA Works Approval has been issued. The council however has asserted that the planning permit has expired. The owners of the Barro land have therefore launched proceedings in the Tribunal, seeking a declaration that the planning permit is extant[10]. That application has not been determined. The owners of the Barro land also made a new planning permit application (made without prejudice to its rights under the original permit) to use and develop the land for a solid inert landfill.
5. The council refused the planning permit application, and on review of that decision to the Tribunal, the Tribunal affirmed the council's decision[11].
6. The owners of the Barro land appealed the Tribunal's decision to the Victorian Supreme Court. During the course of the current proceedings before this Tribunal, the Supreme Court determined that VCAT had erred in law in its decision to affirm the council's decision to refuse to grant a permit for a solid inert landfill on the Barro land[12]. The proceeding was remitted for hearing on two grounds including that VCAT had misinformed itself that there was no need for the landfill having regard to available airspace.
7. Prior to the Supreme Court decision, the council did not rely on the review site's proximity to the Barro site and the existing uses of that land as a basis for refusing the application[13]. The council did submit that it remains relevant for the Tribunal to determine the weight that should be accorded to Barro's objection, the submissions and evidence led by Barro. Following the Supreme Court decision, the council did submit that the prospect of planning approval being obtained for a non-putrescible landfill is highly relevant to our consideration of whether a permit should issue for this proposal.
8. Mr Cicero submits that the issues relied on by the council and, prior to their withdrawal from this proceeding, the Barro Group, must be considered in the context that the review site is zoned Residential 1, and the use of the land for the purpose of dwelling is as of right in the zone. In addition, permits for the residential use and development of the land have previously been issued[14]. In the light of the council's opposition to this proposal, Mr Cicero is critical of the council for not having rezoned the land to minimise the prospect of sensitive uses from locating on a site the development of which it now says is constrained by its proximity to industrial and other uses. Mr Cicero relies on a number of decisions of the Tribunal and higher authorities in support of his submission that the Tribunal's discretion in this matter is confined to issues associated with the development of the land[15]. Mr Cicero submits that the available discretion arises in the context of a planning scheme that distinguishes between controls over the use of the land and controls over the development of the land. The zone, which is the only permit trigger, distinguishes between the use of the land for the purpose of "dwelling" which is as of right and therefore not the subject of discretion, and the construction of buildings to accommodate that as of right use.
9. Mr Cicero submits that the evidence of Mr Glossop and Mr Govenlock which rely on broad planning policy objectives that encourage the separation of incompatible land uses, is not sufficient to establish that this proposal would contribute to an incompatibility of land uses to a point where an as of right use should be refused.
10. A permit is required for this proposal under Clause 32.01-4 of the Brimbank Planning Scheme to construct two or more dwellings on a lot. No permit is required for the use of the land for a dwelling, and no permit is required to construct a dwelling on the land. In this case, the intensity of the proposed development, involving the construction of 67 dwellings, is a relevant matter for us to consider in deciding whether the proposal achieves an acceptable outcome. The intensity of the development, over and above that which is permitted without a permit, is especially relevant having regard to the site's context and in particular its proximity to an exhausted and un-rehabilitated quarry pit, currently used as a concrete batching plant, concrete and rock crushing and materials recycling facilities, and for which a non-putrescible landfill is proposed.
11. We acknowledge that the proposal enjoys support by aspects of the planning scheme. The zoning of the land is clearly very significant. The fact that the proposal does not raise any significant issues about neighbourhood character and amenity impacts such as overlooking, overshadowing, visual bulk and the like, is also significant, as its contribution toward the achievement of housing diversity and urban consolidation policies. Aspects of the site's physical context also lend support to its development for residential purposes. The site is generally flat, and while a permit is required for the removal of native vegetation, neither the council nor the referral authority (DSE) has pursued this aspect of the application as a basis for refusal. The site enjoys access from main roads, and it is proximate to commercial facilities. Permits have previously been issued for the residential use of the land.
12. These attributes however, need to be balanced against other factors that constrain the site's suitability for a development at the intensity proposed. At Clause 17.02 (Industrial land development) of the planning scheme, the objective of State Policy is "to ensure availability of land for industry". The strategies for achieving the objectives are:

Identify land for industrial development in urban growth areas where:

• Good access for employees, freight and road transport is available.
• Appropriate buffer areas can be provided between the proposed industrial land and nearby sensitive land uses.
• Protect and carefully plan existing industrial areas to, where possible, facilitate further industrial development.
• Provide an adequate supply of industrial land in appropriate locations including sufficient stocks of large sites for strategic investment.
• Protect industrial activity in industrial zones from the encroachment of unplanned commercial, residential and other sensitive uses which would adversely affect industry viability.
• Encourage industrial uses that meet appropriate standards of safety and amenity to locate within activity centres.
• Avoid approving non-industrial land uses, which will prejudice the availability of land for future industrial requirements, in identified industrial areas.

1. At Clause 13.04, the control of noise effects on sensitive uses and the protection and improvement of air quality, are identified as State Policy objectives. The separation of incompatible land uses is one of the strategies to achieve those objectives.
2. While we agree with Mr Cicero, that these policies have not been reinforced by the council through the application of local policies specific to this locality, they are nevertheless important considerations in establishing the general principles to be applied in decision making about planning permit applications.
3. In this case, we are satisfied that the affect of the existing uses on the Barro land (a concrete batching plant, concrete and rock crushing and materials recycling facilities) is not sufficient to warrant a refusal of the application. While we cannot conclude that under certain circumstances, these uses would not adversely affect the amenity of future residents, the separation distances, the proposal's acoustic treatments, and the management regimes implemented by the operator of those uses, satisfy us that these impacts are capable of being contained to acceptable levels.
4. Our concerns relate primarily to the potential for more serious impacts associated with the proposal for a non-putrescible landfill for the Barro land.
5. The existing status of that proposal has been outlined above. The council submits that there is a strong likelihood that a permit will ultimately be granted for that proposal. The council submits that we should proceed with our consideration of the current proposal on that basis. The applicant submits that the future of the landfill proposal is speculative. Mr Cicero submits that we are entitled to infer from the withdrawal by the Barro Group from these proceedings, that the Barro Group is now content to have a residential development on the review site, as a neighbour to its proposed landfill.
6. We are unable to make any findings about the prospect of the Barro land being used for a landfill. The merits of that proposal will be determined elsewhere. Having said that, we think that it is more than a speculative proposal. The quarry exists and previous approvals have been granted for its use as a landfill. Works have been carried out in accordance with those approvals, in preparation for its use as a landfill. Declaratory proceedings have been commenced at the Tribunal, and the refusal of the planning permit application pursued through the Supreme Court.
7. There is therefore a prospect that the Barro land will obtain approval to be used as a landfill. In that context, the approval of a development on the review site incorporating 67 dwellings is not an acceptable outcome. The approval of the development is an outcome which has the potential to establish long term and ongoing land use conflicts, and that is an outcome that, on a balanced application of planning policies, is not supported by the planning scheme.
8. We have reached this conclusion for the following reasons.
9. The prospect of a landfill on the Barro land giving rise to significant off site amenity impacts affecting the review site, is very real. A landfill is a use that, by its very nature, has that potential. We are unaware of the nature and extent of those impacts on the review site. The Tribunal that considered the application for the landfill identified the potential impacts of a landfill carried out on the Barro land as dust, noise, landfill gas, litter, visual appearance and traffic[16]. The Tribunal in that case concluded that the impacts of a landfill on the Barro land on existing residential areas were capable of being managed to an acceptable degree, but noted that this outcome is dependant on ongoing and high level monitoring and management of the landfill systems.[17]
10. The uncertainty around the future of the Barro land, and therefore the uncertainty around the nature and extent of the impacts that a landfill on the Barro land might have on the review site, creates a serious concern for us. The approval of the proposed development is at least premature, and we are not prepared to approve the development of the review site in these circumstances. To do so, would establish the potential for future residents of a residential development to be exposed to long term, adverse amenity impacts from the landfill. Reverse amenity impacts associated with the location of an additional 67 dwellings close to the Barro site is also an important consideration. Clause 17.02 of the planning scheme specifically identifies the importance of protecting industrial activity in industrial zones from the encroachment of residential and other sensitive uses that would adversely affect industry viability. The potential for increased complainants and objectors to both the landfill and other operations on the Barro site, resulting from the approval of the current proposal, is relevant and has been influential in arriving at our conclusions.
11. We appreciate that our findings on this matter has the impact of creating (or perhaps continuing) the uncertainty around the development of the review site. That is unfortunate but the uncertainty is largely a function of the uncertainty concerning the future of the Barro land. In the circumstances of this case, an acceptable outcome is best achieved by allowing the future of the Barro land to be resolved first. Subsequent decisions about the review site can then be made in the light of that resolution.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be affirmed and no permit issued.

[1] Brookland Greens is a housing estate in Cranbourne. Methane, a component of landfill gas, was reportedly leaking from the site of the closed Stevensons Road landfill (the landfill) adjacent to the estate and had been detected at dangerous levels in a number of locations, including homes in the estate. Emergency management arrangements were implemented in response to advice received from the Environment Protection Authority Victoria (EPA) that the landfill represented an imminent danger to residents in the estate

[3] BPEM Table 4.1 Classification of landfills.

[4] BPEM Table 8.2 Post closure buffer distances required for landfill gas migration.

[5] BPEM Section 8.2.2 Buffer distances and encroachment.

[6] Mr Rehfisch relied on the Australian and New Zealand Standard (AS/NZS ISO 31000:2009) Risk Management Principles and Guidelines. He also referred to a document titled "The Small Developments Landfill Condition, a Guide for Developers, London Borough of Hounslow, in examining international experience in managing landfill gas risk.

[7] The Tribunal has supported the imposition of this condition in certain circumstances, see Rojin Investments Pty Ltd v Brimbank CC [2012] VCAT 67.

[9] We acknowledge that an overlay of the type discussed here is not currently available within the suite of controls constituting the Victoria Planning Provisions (VPP's). This is a matter the Government ought to address as part of ongoing reviews of the VPP's.

[12] Barro Group Pty Ltd v Brimbank CC & Ors [2012] VSC 154.

[13] Mr Glossop's evidence on this point was equivocal. He was not satisfied that sufficient information had been made available to fully asses the noise and dust impacts on the uses on the Barro site on the review site, and the proposal's response to those issues.

[14] Planning permit P183/2005 was issued by the council to for a retirement village and child care centre in December 2005. Planning permit P257/2006 was issued by the council for aged care accommodation in December 2006. Both permits have expired.

[15] Victorian National Parks Association Inc. and Mineral Policy Institute v Southern Grampians Shire Council & ors [2004] VCAT 20, Great Southern Property Managers Limited; Timbercore Ltd v Colac Otway Shire Council [2006 VCAT 706, Burnsbridge Services Pty Ltd v Greater Bendigo City Council & Ors [2005] VSC 422.

[16] Barro Group Pty Ltd v Brimbank CC [2011] VCAT 1099, paragraph 42.