Mr T Radisich of Associated Town Planning Consultants.

Mr H Jackson, solicitor of Russell Kennedy solicitors.

1 The Applicant for Review owns land to the immediate north of the U T Creek and Alexandra wastewater treatment plant. The land has an area of approximately 7,400 square metres and directly to its east is an additional lot of 4,056 square metres in the same ownership. Both lots are used for grazing and there is a shed and another small building on the subject land. The U T Creek joins the Goulburn River to the south-west. The wastewater treatment plant is to the east of the Alexandra township, abuts land zoned for rural living to its east and north and is opposite land zoned for low density residential development to its south. There are two small pockets of rural zoning to the north-west off Binns-Mcraes Road.

2 The Applicant sought approval for the use and development of the land for a single storey dwelling. The Murrindindi Shire Council ("the Council") resolved to issue a Notice of Refusal for reasons relating to the proximity of the proposed dwelling to the wastewater treatment plant. This Application for Review under Section 77 of the Planning and Environment Act 1987 is brought by Mr P J Weightman seeking review of the Council's decision.

3 In considering the submissions presented by the parties, the following provisions of the Murrindindi Planning Scheme ("the Scheme") are relevant. The subject site is zoned Rural Living under the provisions of Clause 35.03. A permit is required to use and develop the land for a dwelling as the lot size is less than 8 hectares. I have referred above to the zoning of some other land nearby. The decision guidelines of Clause 35.03-5 require consideration of the provisions of Clause 65, as well as a range of matters under the headings of general issues, rural issues, environmental issues and design & siting issues. It is also relevant that a Floodway Overlay applies to the whole of the land wherein a permit is required for buildings and works. Other provisions that require consideration in reaching a decision include the State and Local Planning Policy Frameworks notably Clauses 11, 15.01, 15.04, 16, 19.03, 21 and 22.01 (Rural Siting and Design Guidelines).

4 At the Hearing, written and oral submissions were presented by the parties. I have considered those assisted by my inspection of the site and locality subsequent to the Hearing. I have decided to affirm the decision made by the Responsible Authority. The following sets out my reasons. I do not recite all of the material presented as the detailed written submissions tendered by the parties are retained on file although I refer to some of the main points below.

5 I first record that the only point in contention between the parties is the impact of the proposed dwelling on the long term operations of the Alexandra wastewater treatment plant. In that regard, the Council's position was that the proposal is otherwise satisfactory and I consequently have not explored any other matter in relation to the proposed use and development. I do, however, briefly refer to two points. First is that a land capability report was submitted with the permit application and would require the use of the 4,056 square metre lot to the east of the subject site to enable all wastewater to be contained on the land. The Applicant did not oppose a condition requiring the consolidation of the lots should a permit issue. On its face, that would satisfy the disposal of wastewater on-site however, I have some concern about the proximity of the effluent field to the U T Creek which appears from the land capability report to be a minimum of 50 metres and that may be less than the recommended distances in the Septic Tanks Code of Practice dependent on the classification of the U T Creek. Second is that the whole of the land is included in a Floodway Overlay where at best the suitability of a dwelling would be highly doubtful. The permit application was referred to the local Catchment Management Authority and the Council was advised by it that the proposed dwelling would be outside a Floodway Overlay that is being considered in Amendment C8, effectively removing the Overlay from part of the subject land. The Authority did not object to the grant of a permit. If I had been otherwise minded to direct the grant of a permit, I would have sought to explore these matters in further detail.

6 It is next necessary to consider the basis for the assessment of the proposal with respect to potential impact on the nearby wastewater treatment plant.

7 I was advised by Mr Jackson that the wastewater plant was established in 1970. The facility is owned and operated by Goulburn Valley Water ("GVW"). It serves Alexandra where there are some 993 properties in the township connected to reticulated sewerage. Those that are not include the low density residential area opposite the subject land. The wastewater plant also receives trade waste such as from the local abattoir when it has been operational and waste from septic tanks that is transported to the plant and then treated. I understand that the wastewater plant was upgraded in 2002 and that GVW relatively recently purchased additional land for buffer purposes. In January 2005 through Amendment C10 that newly acquired land was rezoned to Public Use 2 under the Scheme which is the same zoning as the remainder of the facility.

8 There are general policies at Clause 21.03 and 21.07 of the Scheme referring to (inter alia) the environmental impacts associated with effluent disposal and the desirability of consolidating townships to provide for reticulated infrastructure. However, there is no overlay or other provision referring to the Alexandra wastewater treatment plant in the Murrindindi Scheme. Thus, nothing included in or referenced by the Scheme establishes specific guidance for the consideration of this permit application.

9 That does not, however, mean that the issue of the proximity to the wastewater plant is a secondary or irrelevant consideration. The provisions of Clause 35.03 require consideration of various matters including the State Planning Policy Framework, the location and design of existing and proposed infrastructure including sewerage facilities and also whether the proposal is compatible with adjoining and nearby land uses. The wastewater treatment plant is an adjacent or nearby land use and it is relevant that Clause 15.04 requires the Recommended Buffer Distances for Industrial Residual Air Emissions, Environment Protection Authority Publication No. AQ 2/86, Revised July 1990, to be considered.

10 Before turning to the status and content of that document more fully, and how the proposal responds to it, I observe that this is one of a number of recent cases of which I am aware where the development of a dwelling or subdivision near to a wastewater treatment plant has been opposed by a Council and/or water authority but there has been no explicit statutory provision drawing attention to the presence of the facility and buffers[1]. In Boyer, Member Hewet was critical of the lack of action taken in relation to achieving planning scheme recognition of buffer areas, a matter upon which I also made comment in Sandow when referring the buffers adopted by the North East Region Water Authority for the Yarrawonga wastewater treatment plant. With information at hand as to possible buffer distances, it is unreasonable to leave land owners potentially unaware of the issues in relation to opportunities for development near to wastewater treatment plants where buffers are not wholly contained on authority land. The proper course is to identify the buffers an authority believes appropriate for each facility and then seek recognition through a scheme amendment.

11 The EPA publication AQ 2/86 (I refer to this as "the EPA guidelines") is intended to provide guidance in relation to the interface between sensitive uses and industry. It comments on the role of buffer distances and sets out buffer distances for specific industries. Attached to Note 5 is a table to be used as a "guide when considering proposals for residential developments in the vicinity of existing sewerage treatment works". The buffer distances for the following elements are provided in the table:

12 The proposed dwelling was said by the parties to be 250 metres (Council), around 300 metres (GVW) or 350 metres (Applicant) from the closest point of facultative ponds. On my scaling the distance seems closer to the latter.

13 Mr Jackson explained the operation of the plant and advised that the three primary lagoons centrally located to the southern portion of the plant are facultative ponds. He observed that is how they are intended to operate but also indicated the same ponds are arguably operating aerobically given current loadings. In that regard, he referred to a capital works allocation by GVW for the current financial year to provide a single aerator for each lagoon although those works are presently subject to further investigations. With the installation of aerators, the capacity of the ponds would increase and the lagoons would operate as facultative ponds as intended. Mr Jackson referred to the EPA's guidelines and submitted that the proposal would represent a substantial breach of the recommended buffer distance of 700 metres and there is no "slack" in the system at present evident in the augmentation works that are sought to address an overloading problem. Reference was also made to a study by U & R Planning for GVW Review of Buffer Distances Surrounding Wastewater Management Facilities September 2002 which adopted a design capacity of 4,000 equivalent population for the Alexandra plant, refers to the installation type as facultative and recommends a buffer distance of 680 metres from the edge of the primary lagoons. Mr Jackson said that the 4,000 figure was not definitive and even though Alexandra's population may not increase significantly or at all increases in load will occur should industrial activity increase and activities occur at the abattoir and/or saleyards. He said that incompatible uses should not be located in close proximity to one another and stated that if GVW had been aware of the revised position of the catchment authority (ie. that the Floodway Overlay would not prevent a dwelling) then GVW would have sought to purchase the subject land.

14 In response, Mr Radisich submitted that GVW is seeking to prevent an otherwise acceptable use to implement a buffer for the wastewater plant over private land. He submitted that one more dwelling would make little difference to the plant's long term operation in the specific circumstances.

15 Mr Radisich submitted that the EPA's guidelines are simply guidelines and should not be used prescriptively. He referred to recent work in South Australia (which he tabled) that proposes a much lesser distance for facultative ponds. He said that may be relevant and placed weight on the lack of expert evidence called by GVW to confirm the buffer distances it adopts. He submitted that there are too many uncertainties associated with the U&R Planning study to place great weight on a figure of 4,000 equivalent population or a buffer of 680 metres. Those factors include that the local population is static or declining and the abattoir has closed reducing the equivalent population now served. He also highlighted several other mitigating factors that are relevant to the consideration of variations to the recommended distances referred to in the EPA guidelines including:

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The recent upgrade of the facility.

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A lack of complaint from residents within the buffer area particularly since the upgrade -two complaints were recorded by GVW in 2001 and none have been made to GVW, Council or EPA since.

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The prevailing wind regime which is favourable to the site (referring to data from the closest monitoring stations at Eildon and Rubicon).

16 In this context, Mr Radisich referred to 46 dwellings within an area of 680 metres from the closest point of facultative ponds, 14 of which are closer than 350 metres from those ponds with the potential for additional as-of-right dwellings within 700 metres. He also referred to the EPA license under which the plant operates and obligations on GVW to comply with it.

17 In considering the submissions, it is obvious that the proposed dwelling would be well within the recommended buffer distance of the wastewater plant if assuming the primary lagoons are facultative and the equivalent population is less than 5,000 but more than 1,000. That there might be some doubt about the installation type is not a matter that I intend exploring as it was not pursued or pressed by Mr Radisich and it is apparent that GVW has operated those ponds as facultative ponds and will seek to continue to do so even when significant capital works are required.

18 I accept Mr Radisich's point that the EPA guidelines are not definitive. As he observed no expert evidence was called by any party. I also have no submissions from the EPA. Thus, the Guidelines are all that I have to assist in reaching a decision. In these circumstances, and given that the guidelines are required to be considered by Clause 15.04, they must carry weight. That South Australia may be considering lower buffer distances, to 350 metres for less than 5,000 equivalent population, cannot be relied upon as the document is a draft[2] and there is inadequate material before me to assume that a direct translation of such a "standard" can properly be made.

19 The strongest arm of the Applicant's case is the potential for mitigating factors relating to the specific circumstances of the review site and Alexandra wastewater plant. The EPA Guidelines adopt five criteria ("the criteria") that "should be satisfied before detailed consideration is given to site-specific variation of a guideline distance listed"[3] as follows:

(a) The plant has a standard of emission control technology significantly better than the good level of control assumed in the preparation of this document. Best Available Technology would normally be necessary.

(b) An environmental audit of residual emissions has been completed.

(c) There is no history of complaints arising from residual emissions (in the case of an existing plant).

(d) The plant is significantly larger or smaller that those on which the recommended distance is based, to an extent that will substantially affect residual emissions performance.

(e) There are exceptional topographic or meteorological characteristics which will affect dispersion of residential air emissions.

20 The document continues that satisfaction of these criteria are a "prerequisite for considering site-specific variation of the recommended distance...The onus will be on the party seeking variation of the recommended distance to demonstrate clearly that the distance is inappropriate for the particular situation"[4] [Tribunal emphasis].

21 The last part of this quotation is important as Mr Radisich contended that the onus is on GVW to justify the buffer distances. The guidelines state the reverse. That puts a lay permit applicant seeking approval for one dwelling on a nearby lot in a very difficult position. To proceed, detailed analysis including odour modelling would probably be required presumably with input from GVW. Such an "obligation" adds considerable weight to the remarks I have already made that in fairness to land owners an overlay or another appropriate mechanism that defines the parameters and provides certainty is essential without the need for lay persons to be put to this process and expense. The current ability for additional dwellings as-of-right within the suggested buffer area adds weight to this point and I would urge GVW and the Council to act as soon as possible.

22 In considering the mitigating factors referred to by the Applicant, the major problem is that I have some submissions but lack precise or expert information draw a conclusion that the 700 metres, or even 680 metres, is inappropriate. I am persuaded that some reduction would be reasonable of an amount that is not readily quantifiable by giving weight to both a lack of recent formal complaints to any relevant authority and a design equivalent population of 4,000 suggested by U&R Planning.

23 However, to allow the Application I would need to conclude that a house at a distance of around 350 metres from the facultative ponds is acceptable. Having regard to the other three criteria set out in the EPA guidelines, there is simply not enough reliable information for me to form that conclusion for the following reasons:

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I do not have information about the standard of technology at the plant although I accept that the EPA licence must be complied and that GVW is continuing with improvements. That the authority is investing in the facility including land purchase to secure buffers suggests to me that the plant has an ongoing and important community role for Alexandra and the region despite submissions that the population may experience little growth or even may fall.

•

There was no indication from any party that an environmental audit of residual emissions has been completed.

•

Prevailing winds might work in favour of the proposal but it would be wrong to rely on meteorological data from a different location without some assessment of the specific topographical circumstances that apply. Here, that includes a high ridge to the north of the subject land on the north side of Binns-Mcraes Road. The topography or another factor may indeed work against the proposal in meteorological terms.

24 There are no other factors or submissions that persuade me that the proposed dwelling would be appropriate in planning terms. Importantly, the dwelling would not be on the edge of the applicable buffer distance, it would be 350 metres from the closest primary pond in a situation where 700 metres is applied as a guideline. Some reduction may well be warranted for reasons I have set out previously, but that would not achieve a halving of the recommended distance. I do not find persuasive the argument or observation that there are a large number of dwellings, and a caravan park, within 680-700 metres of the facultative ponds. It is easy to say that one more house will make no difference but that is the case for most permit applications that involve matters at a micro-scale. Each decision in its own small way can assist or undermine the Scheme's objectives. That is why the principles of orderly and proper planning are so important and they demand great caution when the outcome might be to exacerbate a situation where potentially incompatible land uses occur too close together.

25 For the above reasons, I conclude that the proposal does not represent an acceptable outcome in terms of the provisions of the Murrindindi Planning Scheme. I will affirm the decision made by the Responsible Authority.

[1] Boyer v Strathbogie SC [2004] VCAT 1624; Sandow v Rural City of Benalla [2004] VCAT 1998; Central Highlands Region Water Authority v Ballarat City Council and Anor (Application for Review No. P2518/2004).

[2] Extract tendered from a publication by the Environment Protection Authority for the Government of South Australia entitled Guidelines for Separation Distances, Consultation Draft, August 2000.