i

the status of persons who lodged statements of grounds with the Tribunal;

ii

whether the informal notification carried out by council is adequate or broader notification is required pursuant to the Planning and Environment Act 1987, s. 52;

iii

if the informal notification carried out by council is adequate, whether expert witnesses need to be recalled for cross examination by those who lodged statements of grounds with the Tribunal;

iv

whether those persons who lodged statements of grounds with the Tribunal wish to make their own submissions to the Tribunal in this matter;

v

the future course of conduct of this matter.

Mr J Gobbo QC with Mr P Chiappi of Counsel instructed by Ms Tamara Brezzi of Deacons. Mr Gobbo QC called Mr Jamie Govenlock, Town Planner and Mr Stephen Lewis of Qest Risk Assessment Consulting

Ms M Quigley SC with Mr Paul Connor of Counsel by direct brief. Ms Quigley SC called Dr H Grynberg, URS Environmental Engineer, Mr M Jarman, Risk Assessment, Dr D Dunt, Health Evaluator, and also called Sue Maclean and John Bowman as lay witnesses.

1 Terminals PL ('Terminals') have applied for planning permission for a chemical storage facility, storing butadiene.

2 Butadiene is a chemical used in the manufacture of carpets and tyres.

3 Area B is the land with which the subject matter of this case is concerned. Terminals have used Area B out of their broader leasehold of Areas A, B & C to receive and store chemicals since at least 1988.

4 This is evidenced by the Department of Labour licence no. FLS 208 dated 30/6/1988 to store flammable liquids and includes Tank No. 2400 which tank sits on and within the land comprising Area B and which holds Vinyl Chloride Monomer.

5 Terminals now applies for a planning permit for an additional sphere to store butadiene imported by ship, before its on forwarding by road transport to manufacturers who use it in industry.

6 Historically, the site was Crown land aside the Geelong Port managed by the Geelong Harbour Trust Commissioners. In 1996 it was privatised and sold to Ports PL. Terminals PL have leased Area B which includes the subject land since 1 April 1978. It was previously zoned Special Use (Port), now Special Use zone 6 under the VPP format planning scheme.

7 There are presently four large storage spheres at the site, which are used to store vinyl chloride monomer, and a number of storage tanks, which are used to store a range of chemicals. The liquids are delivered to the site by ship to Refinery Pier, pumped by pipes to the storage facility and then pumped as required into road tankers for delivery to third parties. The Applicant does not own the chemicals - its role is to receive, store and distribute them.

8 The buildings and works proposed to be constructed or installed are:

a. A storage sphere with a capacity of 4000 cubic metres, set on piled foundations to a total height of 22 metres.

b. A 3m access road to follow the eastern boundary of the site.

c. A fence along the proposed access road to enclose the new part of the facility.

d. An additional pipeline from berth 3 at Refinery Pier along the existing pipe track to the proposed sphere.

e. A new pump and associated pipe work from the sphere to the loading bay.

f. A loading system at existing VCM fill stand 1.

g. A vapour emission control system, or combustor, behind VCM fill stand 2; and

h. A refrigeration unit to be located adjacent to the sphere.

9 The applicant submitted the use is a transport terminal because it provides a terminal for the receipt of product, for the storing of the product and for the onwards despatch of the product, as follows:

a. Product, being chemicals, gasoline and the like, is brought to the pier by ship. The ship may bring one or a number of products;

b. The product is then pumped from the ship along the pipelines to the sphere or tank on the Applicant's land.

c. The product is then pumped from the sphere or tank to a road tanker for delivery to other sites.

d. The Applicant does not own the product.

e. The Applicant provides to its clients the service of receiving the product by ship, holding the product and then loading the product into road tankers as and when the particular client requires it. The Applicant does not sell the product, whether on site or from the site.

10 Mention was made of a very limited amount of processing of the product. For example, distilled water is brought to the facility to be added to caustic soda so as to dilute the product to the required degree. We consider this amount of processing de minimis, and not something which would alter characterisation of the use.

11 Mr Gobbo QC also pointed out that:

It is not possible for a ship to load chemicals directly into a tanker. Accordingly, the storage of goods is necessary to facilitate the interchange of transport mode.

Clients use the applicant's services because the clients do not have the ability to receive the bulk product from ships or in the volumes delivered by ship.

Zones, definitions and the way the planning scheme operates

12 The first issue, a legal one, is whether the proposal requires a use permit, or only a development permit under the Greater Geelong Planning Scheme.

13 Transport Terminal does not require a use permit. Wharf is nested under Transport Terminal and also does not require a use permit. Warehouse does not require a use permit if it is not a purpose shown with a note 1 or 2 in the table to clause 52.10. If it is such a cl. 52.10 noted purpose, it becomes a section 2 permit required use.

14 Warehouse is a section 1 permit not required use provided it complies with all the following conditions which read:

Must be directly associated with and reliant upon the Port.

Must not be for a purpose shown with a Note 1 or Note 2 in the table to Clause 52.10.

The land must be at least the following distances from land (not a road) which is in a residential zone, Business 5 Zone, land used for a hospital or school or land in a Public Acquisition Overlay to be acquired for a hospital or school:

• the air emission buffer, for a purpose listed in the Table to Clause 52.10.

15 Clause 52.10 is a particular provision of the planning scheme dealing with uses that have an adverse amenity potential. The table to Clause 52.10 sets out buffer distance requirements for purposes contained therein.

16 Pursuant to cl. 51, the particular provisions of the planning scheme operate as follows:

The requirements of these particular provisions apply to the specified categories of use and development and other matters in addition to any provisions which apply due to any other provision of this scheme.

17 The storage of butadiene would fall within the purpose shown with a Note 2 in the table to Clause 52.10, in one of two ways, namely:

Storage of bulk volatile organic compounds in quantities greater than 1,000 tonnes

18 Once a warehouse falls within the purpose shown with a Note 2 in the table to Clause 52.10, it is no longer a section 1 automatically permitted use, instead becoming a section 2 permit required use pursuant to cl. 31 which reads:

A use in Section 1 does not require a permit. Any condition opposite the use must be met. If the condition is not met, the use is in Section 2 and requires a permit unless the use is specifically included in Section 3 as a use that does not meet the Section 1 condition.

19 Under the SUZ6 zone land use provisions, a transport terminal is not encumbered by the same sort of condition which would convert it from a section 1 automatic use into a section 2 permit required use. Part of its relevant conditions only read:

Must be directly associated with and reliant upon the port.

The land must be at least 30 metres from land (not a road) which is in a residential zone, Business 5 Zone, land used for a hospital or school or land in a public Acquisition Overlay to be acquired for a hospital or school.

Land used to assemble and distribute goods or passengers. It includes facilities to park and manoeuvre vehicles.

Land used to provide facilities for ships, such as bulk and container ships, passenger ships, and defence force marine craft.

22 Pursuant to cl. 75 of the planning scheme, wharf is nested within the definition of transport terminal.

23 The definition of warehouse is:

Land used to store or display goods. It may include the distribution and the wholesale selling of the goods.

25 Pursuant to cl. 75 of the planning scheme, store is nested within the definition of warehouse, as is fuel depot and milk depot.

26 Pursuant to cl. 74, the way its Table of definitions operates is:

The following table lists terms which may be used in this planning scheme in relation to the use of land. This list is not exhaustive.

However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.

27 The applicant submits the use is a section 1 (permit not required) transport terminal. Alternatively, Mr Gobbo QC submits the use is a wharf, which, as we mentioned earlier, is nested under transport terminal anyway.

28 Council maintains it is a warehouse for which a permit is required because the chemical to be stored therein has the note 2 attached to it under cl. 52.10 of the zone, which converts it into a section 2 permit required use.

29 A transport terminal is a section 1 use and its associated buildings and works, although requiring a development permit, are exempt from the public notification and participation process by cl. 4.0 of Schedule 6 to the Special Use zone.

30 If this use is a wharf, it is not exempt by cl. 4.0 of Schedule 6 to the Special Use zone from the public notification and participation process for associated buildings and works. That it was so exempt was originally assumed by Gibson DP in her directions dated 16 February 2005, when the use was accepted by all parties to be industry.

31 Even though wharf is a section 1 automatically permitted use, it is specifically excluded from the normal section 1 exemptions for buildings and works.

32 Accordingly, the parties agreed that if this was our characterisation, we would reconvene a directions hearing to consider the future course of conduct of the hearing process.

Consequences of being a section 2 warehouse use or other innominate section 2 use

33 Section 2 uses need planning permission, unless they enjoy existing use rights. However, if existing use rights apply, no planning permission is required for that use.

34 Even if it is a section 2 use, Mr Gobbo QC submits a land use permit is still not required, as the land the subject of this application enjoys existing use rights for more than the last 15 years, pursuant to cll. 63.01 and 63.11 which read, where relevant:

An existing use right is established in relation to use of land under this scheme if any of the following apply........Proof of continuous use for 15 years is established under Clause 63.11.

If, in relation to an application or proceeding under the Act or this scheme ..... the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

vi

Terminals PL has leased and used Area B which includes the subject land since 1 April 1978 for chemical storage, formerly from the Geelong Harbour Trust Commissioners and latterly from Ports PL; and

vii

Terminals PL holds a licence from the Department of Labour since 30 June 1988 to store flammable liquid (VCM) on, inter alia, land holding tank no. 2400, which tank sits within Area B

we are satisfied that Area B enjoys existing use rights for the storage of chemicals, for which no planning permission is necessary.

36 However, pursuant to cl. 63.05, a development or building and works permission is still required:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided no building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

37 A permit is therefore required for buildings and works pursuant to cl. 63. 05 of the Scheme.

38 Section 2 uses, whether or not they enjoy existing use rights, do not have their associated buildings and works exempt from the public notification and participation process by cl. 4.0 of Schedule 6 to the Special Use zone.

39 If this is a warehouse, store or other innominate use, the sphere requires planning permission and is not exempt from the public notification and participation process. Again, the parties agreed that if this was our characterisation, we would reconvene a directions hearing to consider the future course of conduct of the hearing process.

40 Pursuant to cl. 64 of the scheme, if land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme.

41 Is this butadiene sphere and its associated pipes and infrastructure a wharf, which is defined as land used to provide facilities for ships? Although we agree that the pier is a wharf, as the pipes along it are a facility for the ships to disgorge their chemical wares, is this facility predominantly such a use?

42 Alternatively, could this facility as a whole partly be a wharf and partly be a chemical store?

43 We acknowledge the pipelines and spheres/tanks are critical for the transfer of product from the ship's hold to land based transport. Both are necessary facilities for the ship's chemicals of whatever sort.

44 Although Terminals is providing a facility for the ship, ie pipelines and a sphere to receive the chemicals prior to land transport to the client, we think it is a matter of fact and degree whether the purpose remains only a wharf or sometimes becomes a store as well.

45 We say it is a matter of fact and degree, because turnover contributes to an understanding of the purpose. Our following comments apply only in respect to the butadiene product as only three deliveries occur by ship per year. That means that for most of the time, the sphere is being used for storage, rather than as a means of transferring chemicals from the ship's hold into the transport tankers to be on forwarded to the owner of the product.

46 It appears to us to be providing a facility for the owner, i.e. storing the chemicals thereby enabling the owner to take the amount needed from the store at times and in quantities that accord with the owner's requirements.

47 Is this a transport terminal, which is defined as land used to assemble and distribute goods?

48 Mr Gobbo QC referred us to Koster & Ors v Campaspe SC & Inland Ports Australia PL[1] which we found unhelpful as that characterisation of transport terminal was accepted without argument, and patently seemed to us to be a transport terminal anyway. Further, the turnover in that case was 50 truck movements per day in Stage 1 rising to 270 truck movements per day.

49 Mr Gobbo QC says it is a transport terminal because the site is a transport mode change for the chemicals from one mode of transport (ship) to another mode (road truck transport).

50 Even if there were no delay in the transfer of product, we wonder whether assembly is the right word to use in respect of transfer of chemicals from one mode of transport (ship) to another (road tanker) for distribution, because no assembly is involved, unlike the collection and redistribution of, for the sake of argument, perishables or dry goods, which are collected together in one location for redistribution to another part of the state or country.

51 Applying the test of best fit, to which we refer below, we think wharf is a better fit than transport terminal, if there were no delay in the transfer of product.

52 Applying Mr Gobbo QC's test of best fit pursuant to Cascone v Whittlesea SC[2], it is our opinion that the real and substantial use is chemical storage facility ( warehouse), as this particular chemical is stored and distributed from this site. As Ashley, J held:

In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that it so where there is provision for innominate uses in the scheme.

The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is 'Yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is 'No', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase 'real and substantial' qualifying 'use' will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between 'purpose of use' and 'use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of 'innominate use'. It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the 'real and substantial' purpose of use test will be applicable in factual situations having the perceived potential to fall within paragraph (4) or (5) above.

53 The slow turnover and clients' use of the land for butadiene storage until they are ready to receive it, leads us to believe that more than one use is made of this land, so that even if part of the land is used as a wharf, the butadiene facility is, in this case, a storage facility.

54 Additionally, the permit applicant itself characterised its use as chemical storage facility which leans strongly towards the warehouse definition, thus requiring a permit.

55 We now turn to the process and natural justice issues.

56 Even if our analysis of characterisation as a chemical storage facility (warehouse) is wrong, since this facility also fits within the definition of wharf, public notification and participation in the planning process is still required.

57 Although the permit applicant correctly identified the use as chemical storage facility, council's planning officer deemed the use to be a transport terminal, for which public notification was exempt. As recorded in council minutes dated 8 February 2005, the officer stated:

Transport Terminal does not require a planning permit subject to conditions relating to direct association with the Port and various amenity conditions. A planning permit is therefore required only for buildings and works, and the application is exempt from the notice requirements.

58 Nevertheless, as explained to us[3], council undertook informal public notification pursuant to Planning and Environment Act 1987, s. 52(3) in order to make a fully informed decision. That apparently resulted in ten submissions, as recorded in council minutes dated 8 February 2005.

59 Having regard to the exemption from notification provisions, a directions hearing was convened on 11 February 2005, to consider the standing of third parties who had lodged their statement of grounds with the Tribunal.

60 In paragraph 3 of her reasons for excluding third parties form the public participation process, Gibson DP states:

The subject land is currently being used for industry (chemical storage facility) and no change of use is proposed.

i

whether industry was the correct characterisation of the use;

ii

whether it was a section 1 use or became a section 2 use as a result of a Note 2 in the Table to c. 52.10;

iii

whether any further implications flowed from that.

62 It appears to have been accepted by all parties that the permit application was exempt from public notification and the directions hearing proceeded on this basis.

63 The parties agreed that a new directions hearing must now be convened to consider the future course of conduct of this matter.

[2] (1993) 11 AATR 175

[3] pursuant to council's Practice Note No. 2 requirements