VJA Consultants Pty Ltd v Hobsons Bay CC & Ors [2012] VCAT 1846

1. The decision of the Responsible Authority is affirmed.
2. In permit application PA 1123189 no permit is granted.

Mr Daniel Bowden, a town planner from SongBowden Planning.

Mr Mark Lovell, a town planner from Hobsons Bay City Council.

For Victoria Workcover Authority - WorkSafe Victoria

The construction of eight dwellings in a two storey building is proposed, along with alterations to access to an arterial road. A basement car park would contain space for up to 10 cars accommodated by use of car stackers. All dwellings would have two bedrooms, a single bathroom, laundrette, kitchen, dining and lounge areas. The four ground level dwellings would have access to garden or terrace areas. The four first level dwellings would access east or west facing eight square metre decks.

Review of failure to make a decisions within the prescribed time pursuant to Section 79 Planning and Environment Act 1987.

Zone, Overlays and Particular Provisions applying to the land under the Hobsons Bay Planning Scheme

Land Adjacent to a Road Zone, Category 1 (Clause 52.29).

Permit triggers under the Hobsons Bay Planning Scheme

Construction of two or more dwellings on a lot (Clause 32.01-4).

Alterations to access to a Road Zone - Category 1 (Clause 52.29).

Variation to car parking requirements (Clause 52.06).

Other applicable provisions of the Hobsons Bay Planning Scheme

The State and Local Planning Policy Frameworks of Clauses 10, 11, 15, 16, 17 & 21 and Clauses 55 & 65.

Shell Company of Australia v Hobsons Bay CC & Ors (includes summary)(Red Dot) [2012] VCAT 1184; Capital Corporation v Port Phillip CC [1999] VCAT 130

1. VJA Consultants Pty Ltd has sought a planning permit from Hobsons Bay City Council to construct eight dwellings on the land known as 462 Melbourne Road Newport. Because the Council did not make a decision on this permit application within the prescribed time, VJA Consultants now seeks a review by the Tribunal. It thus falls upon the Tribunal to decide whether a permit should be granted.
2. The Council submits that a permit should not be granted because:
   • The proposal presents a number of unacceptable outcomes with respect to its proximity to the Newport-Williamstown train line, a major petroleum pipeline and a petroleum storage and distribution depot, all issues raised by various public authorities;
   • The intensity of development outside an activity centre does not have strategic planning support; and
   • The design fails to meet a number of neighbourhood character and amenity objectives of the Hobsons Bay Planning Scheme.
3. Worksafe Victoria and other public authorities attended the hearing to put forward their respective views on the issues set out above. A number of these issues were however resolved with VJA Consultants as part of the conduct of this hearing, specifically those about the proximity to the rail line and the pipeline. The proximity of the development to a petroleum storage and distribution depot remains in dispute between WorkSafe Victoria and the applicant.
4. WorkSafe, the Council and VJA Consultants addressed me on this matter.
5. Specifically the issue arises from the undisputed fact that proposed development sits within the Outer Planning Advisory Area for Major Hazard Facilities. WorkSafe advises against an intensification of the residential land use because of unacceptable risks to future residents associated with such a location.
6. The Council and WorkSafe highlight that while this proposal may represent only one small intensification of sensitive land use close to the depot, the Tribunal should be mindful of the impact from incremental decisions and the eventual encroachment on what has been a long term established industrial use. The Council points to the need to protect industry from such encroachment.
7. VJA Consultants contend that being located within the Outer Planning Advisory Area is not a prohibition on redevelopment. The appropriateness of the proposal is in its view, a matter of balancing policy objectives between the risk, industrial land use and urban/housing development.
8. All parties agree that this issue is a threshold matter that should be resolved before any consideration is given to the design grounds raised by the Council. I concur with this view with these reasons and my order reflecting my consideration of this issue. In light of my conclusions, I have not considered the design issues further in these reasons.

1. It is undisputed between the parties that the subject land lies within the Outer Advisory Planning Area as defined in the WorkSafe document Major Hazard Facilities - Land use planning near a major hazard facility.[1] This definition sets out that it is an area where:

...the consequence of a credible incident is not likely to cause a fatality but persons present may suffer some adverse effects or have difficulty responding to an emergency that may result in injury or harm.[2]

1. I will elaborate later in these reasons on the implications of the site being located in such an area.
2. In geographic terms, the proposed building lies between 214m and 268m southwest of the nearest bund wall of two tanks located on the Shell Newport Fuel Storage Terminal. These two tanks are said by WorkSafe to be floating and fixed roof tanks, each with a capacity of 13.6ML.[3] They are used to store petrol. These facts are not disputed.
3. The tanks are said by WorkSafe to expose existing and future residents of the subject land to 'credible incidents'. WorkSafe advises that the extent of the advisory planning areas are based on a 'Bruncefield' type incident. This is a reference to a blast that occurred at a United Kingdom fuel storage and distribution depot. In that incident a tank overfill event led to the formation and subsequent explosion of a fuel vapour cloud not withstanding various safety mechanisms and processed in place to prevent./manage such an event.
4. Prior to Bruncefield incident, hazard experts considered the probability of such an occurrence to be so low as not be negligible. The Bruncefield incident has given rise to a reshaping of management around major hazard facilities and led ultimately to WorkSafe's preparation of the information sheet on Major Hazard Facilities and land use planning and the definition of 'inner' and 'outer' advisory planning areas.
5. WorkSafe advises that a 'Bruncefield' incident at tank 27 or 28 would generate blast overpressure that:
   • may not directly cause a fatality but persons present within the development 'may suffer some adverse effects' or 'have difficulty responding to an emergency that may result in injury or harm'. The authority elaborated that there would be no time or means by which to communicate to residents that the potential for such an incident was developing or effect appropriate levels of response from residents unused to or untrained to deal with such incidents. They and the building would thus be exposed to the affects of a Bruncefield type incident.
   • may result in partial demolition of the building and expose occupants to flying debris the consequences of which could indirectly cause severe injury or a fatality.
6. These levels of exposure to harm are consistent with the general definition of the Outer Advisory Planning Area set out earlier. Further, the risk of exposure to harm is understood to be the residual risk after the facility's operations and hazard management actions are taken into account. As such, and as per the Bruncefield type incident, the chance of an incident is very low but credible, with the consequences of such an incident being very severe.
7. I observe that within typical risk assessment frameworks, exposure to low frequency incidents with severe consequences typically fall within the category of at least high risk that require remedial action to minimise.
8. WorkSafe advises that the aim of defining inner and outer advisory planning areas is to assist responsible and planning authorities in decision making when they have little knowledge of the risk exposure to harm from a major hazard facility. Thus these planning advisory areas and WorkSafe's advice do not provide hard and fast rules and each site should be assessed on its merits and the safety case and degree of risk relating to the particular site.
9. Added to the mix of considerations, all the parties submit and I concur that that the risk advice is part of an overall exercise of planning discretion. That exercise includes considering strategic and other planning policy outcomes and the overall planning objectives for net community benefit.
10. It is in considering these policy and planning objectives that I find the advice of WorkSafe to be persuasive in tipping the balance in favour of an appropriately cautious response to the level of risk. To be clear about the import of this advice which I accept, it is that:
    • The level of exposure of current residents and residential development around to the risks of the Newport Terminal, and in particular from Tanks 27 and 28, is a legacy of past planning and societal acceptance and understanding of risks.
    • Current levels of understanding and societal expectations of risk would likely limit and, in some cases possibly exclude residential land use and seek to exclude densely populated land uses (be it commercial or industrial) from the outer planning advisory area.
    • The presence of existing residential land use in the outer or inner planning advisory areas is therefore no justification for perpetuating or indeed intensifying the exposure of people to the risk of harm.
    • In the absence of strong strategic or statutory reasons, prudent management of the risk should seek to avoid an increase in the exposure of people to credible risk of harm through intensification of land uses within the planning advisory areas applying to the Newport Terminal's tanks 27 and 28.

1. I now turn to the wider planning policy matter with respect to this application.
2. As a starting point, the purposes of land use and development planning within Victoria and the purposes of the Hobsons Bay Planning Scheme are to:

...provide for the fair, orderly, economic and sustainable use and development of land.

...secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria.

...facilitate development in accordance with the objectives set out in the points above.

...balance the present and future interests of all Victorians.[4]

These and other objectives are to be fostered with the ultimate aim of achieving net community benefit and sustainable development.[5] In recognising that there will sometimes be conflicting directions arising from planning policy objectives, the drafters of the scheme call for integrated decision making to achieve these aims.

1. The State Planning Policy Framework sets directions for housing as rightly referred to by VJA Consultants. These policies seek to achieve consolidation within existing urban areas using the most of existing infrastructure. Various directives are given about the range of consolidation to be undertaken ranging from principle activity centres through to neighbourhood activity centres and other localities.[6]
2. At first instance there are many attributes of this site that align with these policies and those under the local strategic policy framework for providing diversification of housing.[7] It is close to the Newport activity centre and to public transport networks, and there is an arguable case that there is capacity to use the site to diversify the supply of housing type in accord with the applicable residential zone. There are no overlays or other like planning controls within the scheme that might constrain this site for consideration of some form of future re-development.[8]
3. That said planning policy and strategies seek appropriate levels of amenity for residents and safe, pleasant living environments . Planning policy recognises the potential for amenity impacts, including that captured by hazardous conditions, when industry and residential land uses are located too close to each other.[9]
4. In this respect, it is not disputed that the site lies close to the Newport Terminal, specifically tanks 27 and 28 of the Shell Depot and falls within the Outer Advisory Planning Area. Nor are the levels of risk or harm disputed. Clearly then this industrial land use has the potential to impinge on the amenity of nearby sensitive land uses and vice-versa, development sensitive land uses may inhibit ongoing operation of the terminal's facilities.
5. State Planning Policy seeks amongst other outcomes, that industrial land, including that of state significance be protected from intrusion by sensitive land use.[10] By intrusions it is clear the intent is to minimise where possible, potential conflicts between the risks of amenity and hazards from industrial use and the expectations of amenity and a safe living environment of people in a residential environment.
6. Specific to Hobsons Bay, the local strategic framework recognises that:

Hobsons Bay continues to be at the forefront of Melbourne's industrial base and is currently the focal point of Victoria's petroleum, chemical and manufacturing industries, including some of the State's largest and most significant industrial enterprises. The classification system developed to indicate the future role and function of each of the City's industrial precincts consolidates and supports the continued operations of industry in the municipality.[11]

1. The Newport Terminals area is identified as a 'core industrial area' with the intervening land between this area and the subject site to the west as being suitable for strategic redevelopment. Relevant planning strategies seek the following outcomes:
   • Stimulate and facilitate 'appropriate industrial activity and employment opportunities' by:
     • ... the growth and development of industrial development in Core and Secondary Industrial Areas.
     • [protecting]...Core and Secondary Industrial Areas from the impacts of encroachment of residential and other sensitive land uses.
     • [managing]... the successful transition of identified Strategic Redevelopment Areas through the development of Outline Development Plans, (i.e. a master plan), Development Plan Overlays and Design and Development Overlays, as appropriate.
   • Achieve best practice in industry located in the municipality by amongst other actions, working with '...the agencies responsible for the Dangerous Goods Act and the Occupational Health and Safety Act to ensure that industries do not threaten the health and safety of employees and residents'.
   • Manage change within strategic redevelopment areas to achieve amongst other outcomes, protection of '...the existing and ongoing viable industrial uses'.
2. These strategies align with wider state policies set out earlier and seek amongst other outcomes, whether implied or expressed, to maintain the viability of industry, particularly those of state importance. Controlling surrounding land uses that may encroach on and diminish an ability to operate is one of the identified outcomes of this strategy.
3. The use of such a planning approach to protect both industry and residential land uses from the impacts of each other however does not diminish from the goal of having industry manage its potential for hazardous or other amenity impacts. However as WorkSafe puts it, even with proper site management regimes, credible incidents remain possible with risks of significant harm extending to the Outer Planning Advisory Area.
4. Thus while I acknowledge some housing policy outcomes might well be achieved by redevelopment of this site, these outcomes are not sufficient to overcome the objectives of planning to minimise where ever possible the risk of potential harm. A move toward increasing the intensity of residential land use at the subject site, thereby exposing more people to such a risk is counter to such a strongly expressed planning outcome.
5. I find that the balance of planning policy does not favour approval of this proposal.

FURTHER CONSIDERATION OF RISK AND THE AFFECT OF INCREMENTAL DECISION MAKING

1. VJA Consultants contend that the level of risk is not as high as the inner zone with this proposal being distinguishable from the circumstances of the recent Shell Company[12] proceeding where a site in the inner zone was refused a development permit largely on safety/hazard risk grounds.[13] It is submitted that the incremental increase from two dwellings on the site to eight does not present an unacceptable change in risk outcomes.
2. For the following reasons I do not find these contentions are persuasive to overcome the case made out against approving this proposal.
3. I agree that some of the circumstances of the Shell Company proceeding can indeed be distinguished from this application. By way of example, in that proceeding, the proposed redevelopment of residential land lay immediately across the road from the Shell Terminal Depot, with a distance of 59m between the nearest tank bund and the property boundary. As such, the property lay within the Inner Planning Advisory Area, where a higher level of risk of harm is recognised compared to the situation in this proceeding.
4. While there are such contextual differences, the Tribunal's consideration of each party's case in the Shell Company proceedings bear some similarities in terms of relevant planning principles. Indeed Mr Lovell and Mr Bowden referred to passages in the reasons of the Tribunal in that proceeding they considered relevant to their respective cases.
5. Pertinent points that can be drawn from the reasons of the Shell Company proceeding that are relevant in this proceeding are that:
   • While managers of Major Hazard Facilities are required to ensure a site operates to minimise risk, there will always be some element of residual risk. Land use planning has a role in managing this residual risk by minimising or avoiding it as embodied in state planning policy.[14]
   • Even a marginal increase in societal risk is of potential concern because of the 'tyranny of small decisions'. Put another way the incremental affect of individual and seemingly unrelated planning decisions should be taken into account.[15]
6. While the consequence or level of harm within the Outer Planning Advisory Area is not as great as that for the inner area, this does not diminish from the fact there remains a residual risk of adverse impact / hazard to residents in the outer area. It is appropriate indeed necessary, when one considers the scheme's policy objectives as set out earlier, to minimise the residual risk through planning outcomes. For this and the reasons set out earlier in respect to risk, I do not accept VJA Consultants' notion that a 'lesser risk' supports its proposal.
7. VJA Consultants rely in part on the proposal seeking to increase the intensity of use from the present two dwelling to eight to support its case. While seemingly a relatively small increase it is the form of incremental change that reflects the concept of the 'tyranny of small decisions' referred to in the Shell Company decision, with I believe, one caveat.
8. The tyranny of small decisions suggests that a decision would introduce 'a small and seemingly inconsequential change from the preceding situation'.[16] The introduction of a further six dwellings to the same level of risk of harm as that of the existing two dwellings would, in my view, not be inconsequential to the residents of those additional dwellings. Indeed in the event of an incident, the consequences would be severe. It would be unacceptable to allow such an incremental increase in the exposure of people to such risk of harm.

1. As set out early in these reasons, planning is to achieve integrated decision making in order to arrive at a net community benefit. My findings about the safety case, risk of harm from exposure to credible incidents at the Newport Terminal, balancing of planning policy objectives and other relevant planning matters leads to a conclusion that net community benefit is best served by refusing the grant of a permit.
2. Accordingly I will order that that the decision of the Responsible Authority be affirmed and no permit be granted.

[1] Document reference WSV 1331/01/03.10

[2] This is to be compared with the Inner Advisory Planning Area the definition of which is where 'the individual risk of fatality from potential foreseeable incidents is greater than or equal to 1x10-7 per year (one chance in 10 million years).

[4] Section 4(1) of the Planning and Environment Act 1987 and Part 1 and Clause 10.02 of the Hobsons Bay Planning Scheme.

[5] Also to be found in Clause 10.02 of the scheme.

[8] It would also appear that the site does not fall within a neighbourhood character policy area as defined within the Local Planning Policy Framework. I make no comment one way or the other as to this situation in the context of the reasons here.

[12] Shell Company of Australia v Hobsons Bay CC & Ors (includes summary)(Red Dot) [2012] VCAT 1184.

[13] In this application, the application of separation distances from industry under EPA Publication AQ2/86 was also considered. In this present proceeding, no party made submissions about issues of air quality or separation distances.

[14] [2012] VCAT 1184 at [27], [30] and [36]. While this was argument put by the Shell Company of Australia as set out at [27], it is apparent from later reasoning at [30] and [36] the Tribunal accepted this proposition.

[16] Capital Corporation v Port Phillip CC [1999] VCAT 130 as cited in [2012] VCAT 1184 at [28],