JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 and 8 September and 28 October 2010
DATE OF JUDGMENT:	14 December 2010
CASE MAY BE CITED AS:	Rozen v Macedon Ranges Shire Council & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 583

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TOWN PLANNING – Appeal from Victorian Civil and Administrative Tribunal – Permit sought for four dwellings – Land within open potable water catchment – Permit sought contrary to Planning Scheme objectives with respect to water quality – Contrary to precautionary principle – Contrary to Ministerial Guidelines – Exemption to Guidelines not applicable – Planning scheme policies do not trigger the exemption – Evidence as to cumulative risk – Other relevant policy considerations – Town planning evidence – Ultimate test to be applied by Tribunal – Macedon Ranges Planning Scheme - Department of Planning and Community Development (May 2009) “Guidelines: planning permit applications in open, potable water supply catchment areas” - Western Water v Rozen (2008) 24 VR 133.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr N Tweedie	Best Hooper
For the First Respondent	Mr A Finanzio with Mr R Watters	Maddocks
For the Second Respondent	Ms M Quigley SC with Mr P O’Farrell	Norton Rose Australia

TABLE OF CONTENTS

GLOSSARY......................................................................................................................................... 2

Introduction........................................................................................................................................ 3

Water quality issues.......................................................................................................................... 7

Permit contrary to Planning Scheme objectives....................................................................... 8
Permit contrary to the precautionary principle...................................................................... 11

Ground 3 – findings concerning the precautionary principle................................................ 17

The Guidelines................................................................................................................................. 18

Ground 1 – the exemption under the guidelines....................................................................... 28

Ground 2 – the planning scheme policies relating to water quality...................................... 32

Ground 4 – the evidence of Mr Williams.................................................................................... 32

Ground 5 – other planning policy considerations..................................................................... 40

Ground 6 – Mr Glossop’s evidence.............................................................................................. 49

Ground 7 – the test applied by the Tribunal.............................................................................. 50

GLOSSARY

ADWG	Australian Drinking Water Guidelines
ESO	Environmental Significance Overlay
Guidelines	Department of Planning and Community Development (May 2009) Guidelines: planning permit applications in open, potable water supply catchment areas.
LPPF	Local Planning Policy Framework
MSS	Municipal Strategic Statement
P&E Act	Planning and Environment Act 1987
Planning Scheme	Macedon Ranges Planning Scheme
RCZ	Rural Conservation Zone
Septic Tank Code	EPA Publication 891.2 Guidelines for Environmental Management Code of Practice Septic Tank Onsite WasteWater Management Environmental Protection Authority (December 2008)
SPPF	State Planning Policy Framework
Tribunal	Victorian Civil and Administrative Tribunal

HIS HONOUR:

Introduction

The appellants own four adjoining lots of land west of Woodend with a combined area of 72.35 hectares. They wish to obtain a planning permit to erect a dwelling on each of these lots.

The land falls within an open potable water catchment. That is a catchment from which drinking water is collected for public purposes but which is not closed to private ownership and private activity.

In May 2007 a Division…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rozen v Macedon Ranges SC

Details

AGLC: Rozen v Macedon Ranges SC [2010] VSC 583
Case: [2010] VSC 583
Decision Date: 14 December 2010

CaseChat Overview and Summary

Rozen v Macedon Ranges SC was a case in the Victorian Civil and Administrative Tribunal, where the applicant sought a permit for the construction of four dwellings on land situated within an open potable water catchment. The permit was contested by the respondent, the Macedon Ranges Shire Council, on the grounds that it contravened the objectives of the Planning Scheme concerning water quality, the precautionary principle, and the Department of Planning and Community Development's Guidelines on planning permit applications in open, potable water supply catchment areas.

The legal issues before the tribunal involved whether the proposed development would negatively impact the water quality in the catchment area, whether the proposed development contravened the precautionary principle, and whether the exemption from the Guidelines applied in this case. Additionally, the tribunal needed to determine if the Planning Scheme policies triggered the exemption from the Guidelines, and if the evidence presented regarding the cumulative risk was sufficient. The tribunal also needed to consider other relevant policy considerations and town planning evidence when making its decision.

The tribunal found that the proposed development would indeed have a negative impact on the water quality in the catchment area, and that it contravened the precautionary principle. The tribunal also found that the exemption from the Guidelines did not apply in this case, as the Planning Scheme policies did not trigger the exemption. Furthermore, the tribunal considered the evidence presented regarding the cumulative risk and found it to be insufficient. After weighing all relevant policy considerations and town planning evidence, the tribunal determined that the proposed development did not align with the objectives of the Planning Scheme and ultimately denied the permit application.

In summary, the tribunal denied the permit application on the grounds that it would negatively impact water quality, contravene the precautionary principle, and not align with the objectives of the Planning Scheme. The tribunal also found that the exemption from the Guidelines did not apply in this case and that the evidence presented regarding the cumulative risk was insufficient.

Orders