1 The decision of the responsible authority dated 12 March 2021 is set aside.

2 In permit application PA2046800 a permit is granted and directed to be issued for the land at 6 McNeilage Street, Spotswood in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

• Construction of two dwellings

• Dr Ian Thomas, chemical engineer and environmental risk engineer, I F Thomas & Associates

Construction of two side-by-side, double-storey townhouses

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit

General Residential Zone Schedule 1 (GRZ1) (Hobsons Bay General Residential Areas)

Clause 32.08-6 (construction of two or more dwellings on a lot in the GRZ)

Clauses 11, 13.06-1S, 13.07-1S, 13.07-2S, 17.03-1S, 17.03-2S, 21.06, 21.07, 22.08, 32.08, 52.06, 55, 65 & 71.02

The land is on the east side of McNeilage Street and the T-intersection with Morwick Street. It is rectangular in shape with a frontage of 16.46 metres, a depth of 34.14 metres and an area of 562 square metres. The rear boundary abuts Ramsay Street at which is located the land's vehicle crossover. The land is flat. There is a single-storey detached brick dwelling on the land.

1 Mr Xia and Ms Matsumura want to replace a single-storey dwelling on the subject land with two, double-storey, side-by-side townhouses (in these reasons, the proposal).

2 They applied to Hobsons Bay City Council (the Council) for permission under the Hobsons Bay Planning Scheme (the Scheme) to construct the townhouses. The Council refused to grant permission and Mr Xia and Ms Matsumura have applied to the Tribunal to review that decision.

4 The land is in the General Residential Zone (the GRZ) and no overlays apply. Permission is only required under the GRZ to construct the townhouses. In these circumstances, any responsible authority refusing to permit construction of two townhouses would normally only be relying on either failure to comply with ResCode objectives or failure to respond to housing policy, including neighbourhood character policy, or both.

5 The Council is not relying on any of these grounds in this proceeding.

6 The Council's five grounds of refusal all relate to the proximity of the land to a major hazard facility, being the Newport Fuel Terminals. The Council maintains the proposal would be an unacceptable planning outcome having regard to safety risks, the setting of a poor precedent, and compromising future development of the fuel terminals.

7 I have decided the application is an acceptable planning outcome and I will grant a permit. My reasons follow.

8 The land is located in a small residential pocket that is located on the south-east corner of Hall Street and Craig Street. There are only about 46 lots containing about 45 dwellings in this pocket. Two major hazard facilities are nearby to the east and south.

9 The relationship between the residential pocket and its industrial surrounds is illustrated in figure 1, which is an extract of the zone provisions of the Scheme.

Figure 1 Location of the subject land in its zoning context

10 The rear boundary of the subject land abuts Ramsay Street. Ramsay Street is the eastern boundary of the residential pocket.

11 There are about 10 dwellings in McNeilage Street that abut Ramsay Street. There are four double-storey, side-by-side townhouses (ie a similar format to the proposal) nearby at 10, 10A, 12 & 12A McNeilage Street. See figure 2, below.

Figure 2 Existing conditions of subject land and immediate surrounds.

Note (1): The subject land is the yellow rectangle.

Note (2): The closest fuel storage tank is the Ampol MHF tank in the right hand corner of the figure.

Note (3): The grey radii are at 185 metre and 300 metres from the nearest point of the tank bund wall, as plotted by Dr Thomas.

12 The Victorian WorkCover Authority (WorkSafe) licenses MHFs. Adjoining the residential pocket are two major hazard facilities (MHFs) that WorkSafe identifies as the Newport Fuel Terminals. These are the Ampol MHF and the Viva Energy MHF and both are fuel distribution centres.

13 The boundaries of these MHFs in relation to the subject land are shown on figure 3, below.

Figure 3 Location of the Ampol MHF and the Viva Energy MHF

14 The Viva Energy MHF site is opposite the subject land but, as is apparent from figure 2, the storage tanks at the Ampol MHF are closer to the subject land than the Viva Energy storage tanks (which do not appear in figure 2 and are located further to the south).

15 There are a variety of relevant State and local policies relating to economic development, industry, environmental risks and amenity, air quality management, and land use compatibility.[2]

16 The most relevant for present purposes is the major hazard facilities policy. It was introduced on 26 October 2018. The objective of the policy is:

To minimise the potential for human and property exposure to risk from incidents that may occur at a major hazard facility and to ensure the ongoing viability of major hazard facilities.[3]

17 The MHF policy seeks to minimise risk. It does not seek to eliminate risk.[4]

18 The objective has two limbs. The first limb, relating exposure to risks, is the relevant one in this section of the reasons. There are four strategies set in relation to this policy. The two most relevant for present purposes are:

Consider the risks associated with increasing the intensity of the use and development within the threshold distance of an existing major hazard facility.[5]

Apply appropriate threshold distances from sensitive land uses for new major hazard facilities and between major hazard facilities.[6]

19 The first of these strategies is relevant because I characterise the proposal in this proceeding as intensifying the existing development from one dwelling to two dwellings.

20 The Council referred the application to WorkSafe and the EPA for advice.[7] I will consider WorkSafe's advice later in these reasons.

21 The EPA advised the Council that the second strategy is relevant because the EPA considers that strategy operates in a 'reverse amenity' way. The EPA recommended to the Council that the EPA's recommended 250 metres separation distance between large fuel storage tanks and dwellings should apply and was not met in this case.[8]

22 The second strategy, as drafted, relevantly applies to new major hazard facilities and does not apply to new sensitive uses. In any event, the proposal is not a new sensitive use. The subject land is already used for a sensitive use. I will return to the separation distance later in these reasons.

23 The EPA did not refer to, but possibly had intended to refer to, the following different policy:

Provide adequate separation and buffer areas between sensitive uses and offensive or dangerous industries and quarries to ensure that residents are not affected by adverse environmental effects, nuisance or exposure to hazards.[9]

24 This policy logically applies in the case of a new relevant industry or a new sensitive use, such as dwellings. It is not directly relevant because, as I have said, the proposal is not a new residential use. Even if the policy were to be read broadly to include intensification of the development of an existing sensitive use or an existing relevant industry, the more specific MHF policy should be given more weight.

25 It is policy to facilitate the sustainable operation of all forms of industry.[10]

26 This policy refers to protecting industries in industrial zones from residential uses.[11] The relevant strategy is to:

Protect industrial activity in industrial zones from the encroachment of commercial, residential and other sensitive uses that would adversely affect industry viability.[12]

27 It is also a strategy of land use compatibility policy to:

Protect existing commercial, industrial and other uses from encroachment by use or development that would compromise the ability of those uses to function safely and effectively.[13]

28 These policies refer to encroachment. This proceeding does not concern encroachment. The subject land is being used and will continue to be used for dwellings. There will be no encroachment of the use or development in a geographical or locational sense. Any reliance on a concern that the proposal is an encroachment is incorrect.

29 Rather, this proceeding concerns intensification of development of land already used for a sensitive use.

30 WorkSafe is the regulator with MHF risks expertise. In March 2010, WorkSafe published a guideline Major Hazard Facilities - Land use planning near a major hazard facility (the Guidelines).

31 The Guidelines do not have the status under the Scheme as either an incorporated document or a background document. They aim to help responsible authorities assess risks, but emphasise that there is no standard methodology or criteria applicable to advise on applications for planning permission.

32 Under the Guidelines, WorkSafe considers it 'appropriate' to present two risk areas around a MHF.

33 The first area is an 'inner planning advisory area' (an IPAA) in which the individual risk of fatality from a potential incident is one chance in 10 million years.

34 The second area is an 'outer planning advisory area' in which an incident is unlikely to cause a fatality, but a person may suffer some adverse effects or have difficulty in responding to an emergency.

35 In November 2010, WorkSafe identified the IPAA and OPAA for the Newport Fuel Terminals ie the Ampol MHF and the Viva Energy MHF MHFs. See figure 1. The subject land is included in the OPAA.

36 WorkSafe states the IPAA and OPAA in the vicinity of the subject land is 185 metres and 300 metres, respectively, from the edge of the nearest bund wall (a tall concrete barrier) around the nearest storage tanks at the Ampol MHF to the nearest point of the subject land.[14]

37 The bund for the nearest Ampol storage tank is shown on figure 2.

38 WorkSafe told the Council it opposed the grant of a permit having regard to its location within the OPAA, to the 'numbers, occupancy and vulnerability' of persons present in the dwellings, and to the ability of those persons 'to be organised and safely respond to an emergency' at the MHFs.

39 WorkSafe's objection was consistent with the inclusion in the Guidelines of advice that WorkSafe 'generally' opposes:

[L]and use or developments [in a OPAA] for residential ... use where people likely to be present are not able to safely respond to a potential emergency situation or the proposal may result in unacceptable societal risk eg a large number of people present.[15]

40 I characterise the objection as an 'in principle' objection based on the three considerations WorkSafe listed as relevant in the Guidelines and WorkSafe's 'general' advice.[16]

41 The Council relied heavily on this objection in refusing permission, in part because it does not consider itself expert in risk assessment.

42 After being served with the review application, WorkSafe wrote to the Tribunal and the parties to state that WorkSafe did not intend to file a statement of grounds and become a party to the proceeding or otherwise participate in the proceeding (the WorkSafe submission).

43 WorkSafe's decision to not participate is relevant because WorkSafe sometimes participates as a party in the review of planning decisions near MHFs.[17]

44 The WorkSafe submission included further advice to assist the Tribunal. It identified the relevant risks as fire, explosion, toxic smoke or vapour and stated that all these risks could not be mitigated by, for example, an emergency management plan. Accordingly, it said people present on the subject land 'may' not be able to safely respond to an emergency.

45 The WorkSafe submission emphasised that the grant of a permit would set a poor precedent:

WorkSafe is concerned that if [permission] is granted, it would set a precedent for future planning applications, and the cumulative effect would be to increase the population density within the [IPAA] and [OPAA] of [the two MHFs].[18]

46 I characterise the submission as saying little more than the earlier 'in principle' objection. As WorkSafe did not participate in the proceeding, I was unable to obtain more information at the hearing in the presence of the parties.

47 I find the relevant risks acceptable for the following reasons.

48 It is unsurprising that WorkSafe would object to the construction of addition dwellings in the OPAA.[19]

49 However, I infer that WorkSafe does not consider the risk to safety at the high end of the spectrum. It maintains an 'in principle' objection.

50 It is apparent that the WorkSafe submission was not based on a detailed consideration of the particular circumstances in the proceeding. It has not sought independent expert opinion. It has chosen to not participate in the proceeding.

51 The Council does not have a duty or obligation to act in accordance with WorkSafe's advice.[20] The advice is based on the Guidelines. They are over 11 years old. They do not have particular status under the PE Act or any planning scheme. Planning policy, in an overall sense, has moved on.

52 The Guidelines are general in nature.[21] They recognise that there is not yet any standard methodology or criteria for risk assessment in Victoria.

53 Although the Council may not see itself as having risk expertise, it needs to put WorkSafe's submission into the perspective of the planning decision the Council is required to make. I will return to that perspective later in these reasons.

54 Any concern about development in the vicinity of any MHF has not resulted in the last 11 years to the introduction of provisions such as a safety-oriented overlay in the Victoria Planning Provisions.

55 Any concern about development in the vicinity of these MHFs has also not resulted in any specific local policy in the Scheme.

56 In the absence of more specific provisions in the Scheme, risks (and acceptability of planning outcomes) need to be assessed on a case by case basis.

57 The parties drew my attention to many Tribunal decisions. The assessment of the merits in individual cases shines through those decisions.

58 This approach is illustrated by the following two Tribunal decisions. In Day v Hobsons Bay CC,[22] a permit was refused to construct one additional dwelling on land in an OPAA in Altona North. In NP Development Pty Ltd v Hobsons Bay CC,[23] a permit was granted to construct 41 dwellings on land in an OPAA in Williamstown, albeit subject to building design to resist overpressure in an incident.

59 Dr Thomas' opinion is the only expert evidence in this proceeding. While I am not required to accept it, it is an opinion that has assessed the particular circumstances of the subject land and the proposal.

60 Dr Thomas has experience and expertise in risk assessment for a MHF. I will not provide a summary of his detailed evidence. Dr Thomas' opinion is that the risk is acceptable because:

(a) The number of people present in one additional dwelling will have a negligible societal risk.[24]

(b) The distance from the nearest point of the subject land to the nearest point of the Ampol tank bunds is 225 metres, which is somewhat further into the OPAA than indicated in figure 1.

(c) People present in the dwellings will be able to readily evacuate in an incident because they have access to both McNeilage Street and Ramsay Street.

(d) The part of the Viva MHF which is directly opposite the subject land (on the east side of Ramsay Street) does not contain any tanks, is predominantly used for vehicle parking (in his opinion, not a high risk activity), and contains a large building that may act as a buffer in some incidents.[25]

(e) An additional dwelling would be acceptable under the risk assessment methodologies currently applied in the UK and NSW.

61 I have reservations about some of Dr Thomas' evidence.

62 Dr Thomas disagrees with some of WorkSafe's methodologies that he has expressed in other Tribunal proceedings.[26] Dr Thomas referred to what he described as desirable, but nonetheless currently unnecessary, incident barriers along Ramsay Street. This added some confusion.[27] He also agreed that the subject land's frontage to Ramsay Street was not an ideal evacuation point because Ramsay Street is a dead end street and puts the evacuation direction towards the nearest tanks at the Ampol MHF.

63 These reservations do not detract from his ultimate opinion that the proposal is an acceptable safety risk.

64 WorkSafe and the Council are both concerned about the precedential effect of granting permission on the consideration of future planning proposals.

65 WorkSafe states the cumulative effect of granting permission would be to increase the population density within the IPAA and OPAA of the two MHFs.

66 I agree precedent is relevant if only because the Tribunal has accepted on a number of occasions that there is a 'tyranny of small decisions' in the vicinity of MHFs that can have adverse cumulative effects.

67 Nonetheless, the concern is over-stated. In terms of dwelling development, one additional dwelling is at the lowest end of the scale. In terms of an increase in people ordinarily present on the land, the increase is one household or up to four people. The proposal will not result in a large gathering of people.

68 Residents of the two dwellings will not have particular vulnerabilities to being safely evacuated, if that were necessary, which might be the case if the proposal was a child care centre or an aged care facility.

69 I do not see any precedent for future decisions on applications in the IPAA, simply because that area is not relevant in this proceeding.

70 The concern about precedent is also minimised having regard to the small size of the residential pocket. Although there are other residential pockets in the OPAA of both MHFs they are not located close by and will have different contexts.

71 Consistency in decision making is to be encouraged if circumstances are similar. In this residential pocket there has not been consistency in advice and decisions.

72 In 2015, the Council considered a proposal to replace one dwelling with two new dwellings at 8 Morwick Street, about 35 metres to the west of the subject land, and in the OPAA. Ampol and Viva Energy (or their predecessors) and the EPA did not respond with any comments. WorkSafe objected in a similar 'in principle' way as in this application. The Council did not follow WorkSafe's advice and granted a permit.

73 In 2019, the Council considered a proposal to replace one dwelling with two double-storey townhouses (as in this application) at 16 McNeilage Street, about 50 metres to the north of the subject land. Like the subject land, the rear of the land abutted Ramsay Street and was directly opposite the Viva Energy MHF land. WorkSafe did not object. The Council granted a permit.

74 In 2019, the Council considered a proposal to replace one dwelling with two new dwellings at 476 Melbourne Road. This land is about 700 metres to the south of the subject land and in the OPAA closest to the Viva Energy MHF. Viva Energy did not object. WorkSafe and EPA did not respond. The Council granted the permit.

75 I have not referred to the four double-storey townhouses at 10-12 McNeilage Street because they were approved and constructed in 2009 and 2011 before the Council started seeking in 2014 WorkSafe's advice on proposals in the IPAA and OPAA.

76 These decisions do not support a refusal of a permit in this proceeding on consistency grounds. They reveal decisions based on the merits in individual cases, as I have already mentioned.

77 WorkSafe says residents of the proposed dwellings 'may not be able to safely respond to a potential emergency situation in a timely manner'.[28]

78 That seems to be a concern that could be raised in relation to any application in the OPAA. It is unclear whether WorkSafe has considered the plans in the application or considered the street layout in the pocket.

79 It is relevant that the two dwellings face and have ground level access to McNeilage Street and have access to both McNeilage Street and Ramsay Street. Even though the rear of the subject land fabuts the Viva Energy MHF, the residents can evacuate into McNeilage Street and out of the pocket to Hall Street away from both MHFs.

80 The potential for human and property exposure to risk from incidents at the two nearby MHFs comprising the Newport fuel terminals is not so high as to be sufficient reason alone to refuse a permit.

81 Although the Council's grounds of refusal did not expressly refer to risk to residents' from 'adverse environmental effects or nuisance' the Council said at the hearing that it had regard to the EPA's advice.

82 As I have stated, it is policy to provide separation between dwellings and dangerous industries so that residents are not affected by adverse environmental effects or nuisance.[29]

83 The EPA recommends storage of petroleum products in tanks exceeding 2,000 tonnes with fixed roofs have a separation distance of 250 metres from dwellings.[30] In its advice to the Council, the EPA said the proposal does not comply with this recommendation.

84 Dr Thomas' opinion is that the nearest point of the subject land to the nearest relevant tank is 252 metres. The Council did not dispute this calculation. This is a de minimis non-compliance. It does not warrant refusal of a permit on that ground.

85 The Council's grounds of refusal did not expressly refer to groundwater contamination risks.

86 At the hearing, the Council said the EPA advised it that 'there is legacy groundwater contamination within the area' given its proximity to fuel storage. It advised the Council may wish to request that the applicants provide more information about those risks. The Council did not require that information.

87 As the Council's grounds of refusal did not rely on this issue, as the EPA advice referred to a general concern that would apply to a vast area of the district and as the subject land is not subject to the relevant environmental audit overlay, potential contamination does not warrant refusal of a permit on that ground in this proceeding.

88 The Council referred the application to both Viva Energy and Ampol. Neither responded to the Council before the Council refused the application on 12 March 2021.

89 The subject land is directly opposite the Viva Energy MHF. After refusing the application, the Council contacted Viva Energy to determine whether it opposed the application. On 12 April 2021, Viva Energy told the Council that it supported WorkSafe's objection and the Council's decision because it did not support 'this kind of densification within [the OPAA]'.

90 Upon being served with the review application, neither Viva Energy nor Ampol filed a statement of grounds opposing the application.

91 WorkSafe subsequently stated in its submission to the Tribunal that, although there are no storage tanks on the part of the Viva Energy MHF land opposite the subject land, 'increasing population density' so close to the MHF 'could have an adverse impact on the capacity for growth of a MHF within its own site boundary'.[31]

92 I cannot give WorkSafe's submission weight because neither Viva Energy nor Ampol have ever stated allowing the proposal would impact on their future operations, including their capacity for growth.

93 In this proceeding, the Scheme reveals conflicting objectives.

94 On the one hand, there is no dispute that the proposal finds support in State and local housing policies having regard to the GRZ, the land's dimensions, the inner urban location, the established residential area setting, and the modest proposed increase of one dwelling.

95 On the other hand, State policy for MHFs is, as I have mentioned, to minimise exposure to risks from MHF incidents. Other industry related policies seek to protect industries from the encroachment of residential uses.

96 This conflict highlights the need for the responsible authority (and Tribunal, on review) to balance conflicting policies in favour of net community benefit and sustainable development for the benefit of present and future generations.[32]

97 Based on the submissions and evidence in this proceeding, the risks are not as great as assessed by the Council and are minimised, as encouraged by policy. I have taken into account the other relevant considerations, as set out in these reasons. The balance lies in supporting the proposal. The proposal is an acceptable planning outcome. Permission should be granted.

98 I have considered the parties' submissions on the Council's without prejudice draft permit conditions.

99 For the reasons given above, I will set aside the Council's decision and grant a permit subject to conditions.

1 Before the development starts, revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be substantially in accordance with the advertised plans but modified to show to the satisfaction of the Responsible Authority:

(a) A re-establishment survey plan of the subject land prepared by a licensed land surveyor showing the location of existing boundary fences and any other relevant land features in relation to the title boundaries. Any discrepancies between the advertised plans and the survey plan must be rectified to the satisfaction of the Responsible Authority.

(b) A revised schedule of all external materials and finishes. The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames and paving, and include the following:

1. The materials and colour of the roofs must be of light/medium colour with solar absorptance = or <0.7.

(c) All plant and equipment (including hot water systems) which is proposed to be located externally, must be shown the floor plans and elevation plans.

(d) The notation regarding the location of the air conditioning/heating units must delete reference to 'possible' location.

(e) A revised landscape plan including the location of all existing and proposed species. An emphasis must be placed on maximising the use of native drought tolerant species and must include:

1. The provision of at least one additional advanced native non-deciduous canopy tree (in addition to the canopy trees already shown) comprising either a Coastal Banksia, Dwarf Yellow Gum or similar within the front setback of dwelling 1. The canopy trees must have a mature height of at least six metres
2. A notation indicating all trees must be a minimum 1.5 metres high at the time of planting.

(f) The site plan and landscape plan to nominate a Tree Protection Zone in accordance with condition 6 of this permit.

(g) A notation of the recommendations outlined in the Arboricultural Report detailed on the site plan and landscape plan.

(h) A notation on the plans that electricity company connections to the proposed dwellings are provided underground.

(i) A notation on the plans confirming that no front fence is to be provided or that the existing front fence is proposed to be retained. If a front fence is to be provided it must have a maximum height of 1200mm and details of materials must be provided on the plans.

(j) The site layout and landscape plans must be updated to show the relocation of the four bins for Dwelling 1 to within the side setback or rear yard of the Dwelling. The four bins must not be located within the front setback, when alternative locations are possible. Details of a bin enclosure must be provided for Dwelling 2, to reduce the visual impact of the bin location within the front setback of the dwelling.

(k) The worm farms of each dwelling relocated to the rear yards to reduce the visual impact on the streetscape.

(l) In conjunction with the revised Sustainable Design Assessment required by Condition 9, the plans must be revised to show:

1. All references to irrigation with the RW tank must be consistent with the revised SDA in particular condition 9. iii regarding irrigation areas.
2. The lawn/turf also must be included in the plating schedule and must be of drought tolerant variety.

1. The large area of stepping stones in the side setback of unit 1 must have a substrate construction system similar to that used for permeable paving to allow water to percolate into the ground. This detail must be shown on the landscape plan.

2 The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3 Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.

4 Concurrently with a request for endorsed plans under this permit, the owner must lodge a bank guarantee or bond of $2000.00 with the Responsible Authority to ensure the satisfactory establishment of landscaping works. Once landscaping has been completed in accordance with the endorsed landscaping plan, Council must be notified so a six week establishment period will commence. The bank guarantee or bond will be returned after an inspection has confirmed the landscaping has been maintained for that period to the satisfaction of the Responsible Authority. After the establishment period, the landscaping must be maintained in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority.

5 Prior to the occupation of the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained to the satisfaction of the Responsible Authority.

6 Prior to commencement of works, the following provisions relating to the protection of the existing street trees and tree within the front setback must be undertaken to the satisfaction of the Responsible Authority:

(a) A suitable Tree Protection Zone as outlined in the Arboricultural Report with barrier fences must be established around the two street trees to be retained on the McNeilage Street frontage and for the tree within the front setback of dwelling 2.

(b) The Tree Protection Zone must be enclosed using a 2 metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a 'Tree Protection Zone'.

(c) The area within the Tree Protection Zone must not be disturbed by any means (including parking of vehicles or storage of plant & equipment, materials, soil or waste).

(d) No excavation is allowed within the Tree Protection Zone except with the consent of Council's Town Planning Department and under the supervision of a qualified Arborist.

7 The provisions, recommendations and requirements of the endorsed Arboricultural Report prepared by Tree Response and dated 14th September 2020, must be complied with and implemented to the satisfaction of the Responsible Authority.

8 The sustainable design initiatives listed in the endorsed Sustainable Design Assessment must be incorporated into the development to the satisfaction of the Responsible Authority.

9 Concurrently with a request for endorsed plans under this permit a revised Sustainable Design Assessment (SDA) and BESS report must be submitted to and approved by the Responsible Authority. When approved the SDA will be endorsed and will then form part of the permit. The assessment and report must be substantially in accordance with those provided with the application, but modified to show to the satisfaction of the Responsible Authority:

(a) Shading credit removed (design does not meet this requirement).

(b) A commitment must be included to low/no VOC paints internal paints.

(c) An irrigated area connected to the RW tank for irrigating any desired garden areas (amounting to only a portion of the total garden area) must be nominated in BESS if the water efficient landscaping credit is to be claimed. This must also be reflected in the SDA (p.2).

(d) Appendix F re stormwater management during construction must be referenced in the ESD initiatives table (SDAp.2& 3) either in Stormwater or Management sections.

(e) Separate receptacles must be provided and integrated into the kitchen cabinetry to facilitate sorting recyclables from general rubbish.

(f) The "POS - courtyard and balcony" credit must be removed and BESS and SDA updated as it applies only to fully paved outdoor areas.

(g) A short description of the information, specific to the project, that is intended to be provided in the Building User's Guide must be provided. This can be included either in BESS or in the SDA.

10 All basic services including water, electricity, gas, sewerage, telephone and other telecommunication facilities must be installed underground. All above ground meters must be located to the satisfaction of the Responsible Authority.

11 Prior to commencement of the development the owner must prepare stormwater drainage design plans to the satisfaction of the relevant Building Surveyor. An application to Council must be made for a Legal Point of Discharge for the disposal of stormwater from the subject land and to determine the relevant Council standards for the stormwater drainage system design. An on-site storm water detention system will be required if the volume of stormwater exceeds the capacity of the legal point of discharge.

12 The owner must meet the costs of all alterations to and reinstatement of, the Responsible Authority and other Public Authority Assets deemed necessary and required by such Authorities for the development. The owner must obtain the prior specific written consent of the Council or other relevant Authority to such alterations and reinstatements and must comply with conditions required by the said Authority in relation to the execution of such works.

13 Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:

(b) Properly formed to such levels that they can be used in accordance with the plans.

(c) Surfaced with asphalt or concrete unless another surface treatment is approved by Responsible Authority.

(e) Line-marked to indicate each car space and all access lanes.

Parking areas and access lanes must be kept available for these purposes at all times.

14 Any vehicle crossings must be constructed in the location shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like must be at the expense of the owner and approved by the appropriate authority prior to undertaking such works. Consent for such crossings must be obtained through Council's Contracts, Procurement and Asset Protection Department prior to construction.

15 Prior to the occupation of the buildings, all boundary walls on or facing the boundaries of the site must be either raked and cleaned (face brickwork) or rendered and painted or bagged and painted to the satisfaction of the Responsible Authority. Any protruding floor slab must be cleaned and trimmed flush with the wall to the satisfaction of the Responsible Authority.

16 All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

17 This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit.

(b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the period in which to start the development if a request is made in writing before the permit expires or within six months afterwards.

The Responsible Authority may extend the period in which to complete the development if a request is made in writing before the permit expires or within 12 months afterwards and the development was lawfully started before the permit expired.

[1] The filed submissions and evidence, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] These are identified in the information section and I have considered them in determining this proceeding.

[4] Wilcon Projects Pty Ltd v Hobsons Bay CC [2016] VCAT 1919 [46]-[54].

[7] Neither is a statutory referral authority for the application.

[8] EPA, Recommended separation distances for industrial residual air emissions, document no. 1518, March 2013, p 10.

[9] The Scheme cl 17.03-2S, Strategies, dot point 6.

[10] The Scheme cl 17.03-2S, Objective.

[11] The Scheme cl 17.03-2S & cl 13.07-1S.

[12] The Scheme cl 17.03-2S, Strategies, dot point 4.

[13] The Scheme cl 13.07-1S, Strategies, dot point 4.

[14] The IPAA and OPAA for the Viva Energy MHF is further to the south and does not affect the subject land.

[17] See eg Lobianco v Hobsons Bay CC [2021] VCAT 852.

[18] WorkSafe submission dated 8 July 2021, p 5.

[19] However, WorkSafe has not objected to all additional dwellings in this OPAA. I will refer to its 'no objection' advice regarding two new dwellings at 16 McNeilage Street later in these reasons.

[20] WorkSafe is not a determining referral authority in respect of the permit application.

[21] The boundaries of the advisory areas are said to be a radius from the bund wall of the nearest storage tank. In this case, the nearest tank to the subject land is on the Ampol MHF. Figure 2 shows the bund walls near that tank. They are not constructed in a circle around the tank. The advisory areas are curved and appear to relate to the shape of the tank and not the straight lines in the bund walls.

[22] [2016] VCAT 435.

[23] [2014] VCAT 861.

[24] Societal risk is defined in the Guidelines at p 1.

[25] The large building is shown as a 'sheltering building' in figure 2.

[26] See eg Lobianco v Hobsons Bay CC [2021] VCAT 852.

[27] These barriers are shown in a red line on figure 2.

[28] WorkSafe, submission dated 8 July 2021, p 5.

[29] The Scheme cl 17.03-2S, Strategies, dot point 6. A dangerous industry is not defined for the purpose of this policy, but I will proceed on the basis that a major hazard facility is a dangerous industry.

[30] EPA, Recommended separation distances for industrial residual air emissions, document no. 1518, March 2103. This document is a 'background document', but not an 'incorporated document', under the Scheme.

[31] WorkSafe, correspondence to Tribunal dated 8 July 2021, p 5.