Rozen v Macedon Ranges SC
[2010] VSC 583
•14 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 263 of 2010
| MAURICE ROZEN and ESTHER ROZEN | Appellants |
| v | |
| MACEDON RANGES SHIRE COUNCIL | First Respondent |
| and | |
| WESTERN WATER | Second Respondent |
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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 of the Victorian Civil and Administrative Tribunal (‘Tribunal’) allowed an appeal from a decision of the first respondent (‘the Council’) against a refusal of permit. The Tribunal granted a permit for the four proposed dwellings.
The Tribunal’s decision was appealed to this Court by both the Council and the second respondent (‘Western Water’) which is the authority having the function of distribution of potable water collected within the catchment.
In determining to grant a permit the Tribunal placed significant weight upon the compliance of the proposal with the current Septic Tank Code of Practice.[1]
[1]EPA Publication 891. Guidelines for Environmental Management Septic Tank Code of Practice Environmental Protection Authority (March 2003). This Code has since been replaced by EPA Publication 891.2 Guidelines for Environmental Management Code of Practice Septic Tank Onsite WasteWater Management Environmental Protection Authority (December 2008), which was valid at the time of the 2009 VCAT hearing and decision (‘Septic Tank Code’).
It also took the view that the precautionary principle was not invoked in the absence of the threat of ‘irreversible’ as distinct from ‘serious harm to the environment’.
On appeal to this Court the Tribunal’s initial decision was set aside, essentially because the Tribunal had failed to properly apply the precautionary principle in circumstances where the relevant planning controls invoked that principle and the respondents contended the permit application raised an issue of cumulative risk of water contamination within the catchment.
The matter was remitted to the Tribunal for rehearing but prior to this occurring the State Government affirmed the application of the precautionary principle to permit applications of this type by adopting (in place of prior interim guidelines) Guidelines: planning permit applications in open, potable water supply catchment areas (‘the Guidelines’).[2]
[2]Department of Planning and Community Development (May 2009) Guidelines: planning permit applications in open, potable water supply catchment areas.
The Guidelines affirmed a general benchmark standard of a maximum of one dwelling per 40 hectares within open, potable water catchments.[3] They also addressed a series of other matters relating to development within such catchments.
[3] Guideline 1 states in full:
Where a planning permit is required to use land for a dwelling or to subdivide land:
· the density of dwellings should be no greater than one dwelling per 40 hectares (1:40 ha); and
· each lot created in the subdivision should be at least 40 hectares in area.
This does not apply if a catchment management plan, water catchment policy or similar project addressing land use planning issues and the cumulative impact of onsite waste water/septic tank systems has been prepared for the catchment, and the objectives, strategies and requirements of the plan or project have been included in the planning scheme.
The Tribunal reheard the matter and received evidence called by Western Water from a town planning witness (Mr Glossop) and a scientist with expertise in microbiology and the contamination of potable water (Dr Deere). It also heard evidence called by the appellants from two soil scientists (Mr Williams and Dr van der Graaff) with expertise in the operation of the type of waste water system proposed by the appellants.
The Tribunal formed the view that the appeal raised three levels of issue. First, water quality issues and in particular the application of the precautionary principle in the context of development of this type. Secondly, landscape and visual impact issues; and thirdly, sustainable land management and agricultural land use issues.
The Tribunal held that a permit for not more than two dwellings should be granted because of unacceptable risks of water contamination associated with increased dwelling density. The Guidelines do not make clear how the 1:40 hectare density is to be measured spatially[4] and both of the respondents conceded in the present case that two dwellings on the subject land could be regarded as reasonably consistent with the Guidelines. The Tribunal further held that a permit for two dwellings would be consistent with landscape and visual impact objectives, but concluded that having regard to sustainable land management and agricultural land use objectives a permit should issue for no more than one dwelling.
[4]That is solely by reference to the land in issue or by reference to the land and the surrounding area in which it is contained and if so how?
The appellants now seek to challenge the Tribunal’s decision. They contend firstly that the Tribunal erred in resolving the water quality issues as it did, because it misdirected itself as to the application of the Guidelines, and in the application of the precautionary principle, and failed to have regard to evidence called from Mr Williams.
They contend further that the Tribunal misdirected itself in resolving the agricultural land use issues against the appellants because it misapprehended the relevant planning policy framework, failed to have regard to the town planning evidence of Mr Glossop, and failed to apply the correct test in determining that only one rather than two dwellings should be permitted.
For the reasons which I elaborate below I have come to the view that the Tribunal’s decision should be upheld. First the Tribunal’s decision as to water quality was founded on a series of alternative conclusions, each of which was sufficient to dispose of this aspect of the case adversely to the appellants:
(a) the proposal for four dwellings was contrary to the Guidelines;
(b) the grant of the proposed permit for four dwellings would be contrary to the precautionary principle; and
(c) the grant of the proposed permit for four dwellings would be contrary to planning scheme objectives directed to ensuring the potable water supply within the catchment was not contaminated.
The second and third conclusions were open to the Tribunal on the evidence before it and each is sufficient to dispose of the water quality issue. The first conclusion raises questions of the interpretation and application of an exemption within the Guidelines. In my opinion the preferable view is that the exemption did not apply, but even if I am wrong as to this, the other conclusions to which I have referred mean that error in this respect would not constitute a vitiating error.[5]
[5]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J) and 22 (Adam J), applied in Zumpano v Banyule [2003] VSC 215; B Marsh Nominees Pty Ltd v City of Moonee Valley [2004] VSC 237. Smith J stated at 18 in Portland Properties that:
…the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal [a predecessor of the Tribunal] went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
The Tribunal’s view as to the policies relating to fragmentation of land holdings and agricultural land use was also open to it both as a matter of construction of the planning policy matrix applicable to the land, and as a matter of fact in the circumstances of the case. I do not accept that any error of law has been demonstrated in its approach to these matters.
Likewise, I am satisfied that when the Tribunal’s reasons are read as a whole, they demonstrate that it applied the proper test in determining whether two dwellings would be an acceptable planning outcome. Before turning to the reasons for these conclusions it is convenient to repeat my previous summary of some threshold facts:
The four lots have a combined area of 72 hectares. Each of the lots has a frontage to the Campaspe River, which flows downstream into the Campaspe Reservoir (which supports the town of Woodend). In turn, the Campaspe Reservoir forms part of the water storage system within the catchment of Lake Eppalock.[6]
The site thus sits within what is classified as an open potable water supply catchment. It is open in the sense that it is not in public ownership and is open to access by private individuals without regulation by the catchment authority.
The four lots which are the subject of the present appeal are irregular in shape as a result of their river frontage and their respective areas range from 15.45 to 24.08 hectares.
The land is located about seven kilometres from Woodend and is currently used for agricultural purposes. It is located in a Rural Conservation Zone and covered by an Environmental Significance Overlay Schedule 4 (Eppalock Proclaimed Catchment) pursuant to the relevant planning scheme.
A permit is required to erect a dwelling pursuant to the zone control and there is a further permit requirement pursuant to the overlay control for buildings and works generally.[7]
[6]The catchment areas are listed within the Catchment and Land Protection Act 1994, Schedule 5.
[7]Western Water v Rozen (2008) 24 VR 133, 134-35.
I turn now to the water quality issues, which comprised the focus of the first level of the Tribunal’s enquiry.
Water quality issues
The permit application proposed the installation of automated secondary treatment waste water treatment facilities for each dwelling as well as a range of detailed siting and management conditions relating to those facilities.
Nevertheless the Tribunal concluded that the proposal for more than two dwellings on the subject land was unacceptable for three reasons relating to water quality:
(1) it breached the applicable Guideline which stipulates a maximum density of 1:40 hectares;
(2) it breached the precautionary principle; and
(3) it did not achieve compliance with the express provisions of the Macedon Ranges Planning Scheme (‘Planning Scheme’) directed to protecting water quality within the water catchment.
Counsel for Western Water submitted that the Tribunal’s conclusion that Dr Deere’s evidence should be accepted provided a further independent basis for reaching the conclusion it did. The Tribunal however expressed its conclusions in the way I have set out above and treated Dr Deere’s evidence as supportive of those conclusions and in particular the second and third conclusions that the grant of the proposed permit would be contrary to the precautionary principle and would be contrary to Planning Scheme directives directed to ensuring that potable water supply within the catchment was not contaminated.
It is appropriate in the first instance to deal with the water quality issues by reference to the Tribunal’s express framework of reasoning but it is convenient to do so by reference to its conclusions in reverse order.
Permit contrary to Planning Scheme objectives
In my view the third conclusion is necessarily dispositive of the water quality issue, whatever may be said with respect to the applicability of the Guidelines or the consequences of the precautionary principle which underlies them.
The Tribunal expressed the third conclusion as follows:
Given the primacy of water quality considerations in the planning scheme, we also consider that four dwellings cannot be supported having regard to the zone and overlay provisions applying to the land.[8]
[8]Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (23 December 2009), [93].
The Tribunal was correct to recognise that both the zone and overlay provisions, pursuant to which it was asked to exercise its discretion, expressly recognise the primacy of water quality considerations. The purposes of the Rural Conservation Zone include:
To conserve the values specified in the schedule to this zone.[9]
[9]Macedon Ranges Planning Scheme, cl 35.06.
The relevant Schedule states as a conservation value:
To ensure that land use within water supply catchments, most particularly proclaimed catchments, will not comprise water quality.[10]
[10]Ibid, Schedule 1 to the Rural Conservation Zone.
The Environment Significance Overlay (‘ESO’) states the environmental significance of the area in the following terms:
Lake Eppalock is a major water storage and recreational facility located within the Campaspe River catchment. It is a major source of water for irrigation, stock and domestic and urban water supplies for towns within the municipality.[11]
[11]Macedon Ranges Planning Scheme, Schedule 4 to the Environmental Significance Overlay.
It further states the following environmental objective:
To ensure the protection and maintenance of water quality and water yield within the Eppalock Water Supply Catchment Area as listed under Section 5 of the Catchment and Land Protection Act 1994.[12]
[12]This extract from Schedule 4 to the Environmental Significance Overlay appears to contain a misprint. Section 5 of the Catchment and Land Protection Act 1994 binds the Crown. Section 10 authorises creation of catchment and land protection regions, while Schedule 5 to the Act names and defines the areas.
Under both the Schedule and the Overlay, the control specific decision guidelines require consideration to be given to the impact of the use and development on the water catchment.
The above provisions make clear an explicit intent to ‘ensure’ that water quality is not compromised within the catchment. That intent is also elaborated in both the SPPF and LPPF[13] but it is unnecessary to go to these policies for present purposes.
[13]State Planning Policy Framework and Local Planning Policy Framework.
It was open to the Tribunal to refuse a permit for four dwellings if it was of the opinion that this was necessary to ‘ensure’ the protection and maintenance of water quality.
In turn the evidence of Dr Deere plainly justified this conclusion. The Tribunal summarised the key components of his evidence as follows:
It was Dr Deere’s expert view that the application for a planning permit for four dwellings cannot be supported as development and use of dwellings in an open, potable water supply catchment at a density less than 1:40 ha cannot be supported. He gave evidence that pathogens can result in human harm. Pathogens can contaminate waters in open water supply catchments and can present most risk when those pathogen sources are from human origins, including from waste water treatment plants. He emphasised that risks arose not so much from a properly functioning, well maintained waste water treatment plant , but from the failure of onsite waste water management systems. Exacerbating issues for the ongoing effective operation of onsite water management systems include institutional limitations, temporal limitations (as new systems becomes old) and human limitations (human error and/or deliberate changes to the operation of the onsite waste water system).
Dr Deere supported the 1:40 ha dwelling density limitation in both the Interim Guidelines and the current Guidelines because:
oIt provides an adequate benchmark for protection of the water supply from human pathogens. It is not a precise rule, but rather a good rule of thumb that provides a buffer for things to go wrong.
oThe density limitation of 1:40 ha provides for safe irrigation practices from onsite waste water management systems ensuring protection of the environment from salts, nutrients and hydraulic flows, as well as the protection of human health relating to the reduction and lack of movement for pathogens into water sources.
oOnsite waste water treatment systems present a higher risk to water quality, and higher densities of dwellings with such systems provide a higher water quality risk. He referenced a number of studies reporting poor compliance for onsite systems and a failure to meet performance criteria for aerated waste water treatment systems, which is the type of system proposed in this case.
oThe dwelling density across the catchment already exceeds the limitation of 1:40 ha.
Dr Deere made the point that water quality in the Campaspe Reservoir is already compromised. In his view, the catchment is at a point where it is uncomfortably close to the limits in terms of current treatment systems. It is not yet at a point where Western Water needs to abandon its attempts to manage the catchment to maintain water quality and opt instead for the installation of much higher cost treatment systems. However, he emphasised that the margin of safety that the one dwelling per 40 hectare density limitations sought to achieve was not so great as to justify the risk of going below the 1:40 ha dwelling density if you have a choice.
He referenced various studies to demonstrate that engineering and management systems fail and this cannot be avoided. Often failure is due to human misunderstanding, lack of maintenance and human intervention resulting in non-conformance with installation and operation instructions. While onsite sewerage management systems are capable of producing good water quality outcomes at first installation, much of the focus is on the performance capability at installation. New systems eventually become old and therefore cumulative increases in onsite sewerage management systems could eventually lead not only to increased risk of failure but also to an increased number of systems failing in any one catchment. It is well established that at an institutional level, there is a very poor track record in ensuring that systems are installed, used and maintained appropriately, and for identifying failing systems.[14]
[14]Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (23 December 2009), [63]-[66].
Dr Deere’s evidence thus supported the conclusions that human sourced pathogens from waste water treatment plants constitute a risk to human health and that the threat constituted by such risk principally arises from the risk of system failure. The 1:40 hectare density benchmark is an appropriate limitation that provides meaningful safeguards. The catchment in issue already contained dwellings at a greater density catchment wide and water quality management within that catchment was already compromised to a sensitive degree.
Accordingly the Tribunal’s conclusion that a permit for four dwellings should be refused in order to ensure the protection of water quality was open to it.
Permit contrary to the precautionary principle
As I have said, the precautionary principle constituted the second basis on which the Tribunal resolved the water quality issue against the appellants. The Tribunal correctly stated the precautionary principle:
The Intergovernmental Agreement on the Environment expresses the precautionary principle in the following terms.
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:
(i)Careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii)an assessment of the risk-weighted consequences of various options.
The State Environment Protection Policy (Waters of Victoria) (“SEPP Waters of Victoria”) requires application of the precautionary principle to guide decisions about the protection and management of Victoria’s surface waters in virtually identical terms as expressed in the Intergovernmental Agreement on the Environment.
The State Planning Policy Framework (SPPF) of the Macedon Ranges Planning Scheme identifies the Intergovernmental Agreement on the Environment as one of a number of national agreements, strategies and policies that provide a broad framework for the development of strategies and policies at the State level to encourage sustainable land use and development. In Victoria, state environment protection policies made under the Environment Protection Authority Act 1970, which includes SEPP Waters of Victoria, are binding on all sectors of the Victorian community.[15]
[15]Ibid, [10]-[12]. Citations omitted.
The Tribunal was expressly required by s 84B(2)(e) of the Planning and Environment Act 1987 (‘P&E Act’) to take account of and give effect to the SEPP Waters of Victoria which adopts the precautionary principle as one of its bases.[16]
[16]The SEPP also provides in part that on site domestic waste water needs must be managed to prevent the transport of nutrients, pathogens and other pollutants to surface waters and to prevent any impacts on ground water beneficial uses.
Dr Deere’s evidence summarised above also supported the view that the imposition of the 1:40 hectare density benchmark standard was supported by the precautionary principle. The Tribunal concluded with respect to this aspect of the matter:
The 1:40 ha density is a precautionary measure. The figure of 40 hectares has not been selected on a scientific basis but as a rule of thumb. We accept that experience indicates that water from catchments with dwelling densities at around this level require a certain level of treatment and higher densities require much higher levels of treatment, which are more expensive.
We accept the advice of Western Water that the Campaspe River catchment is at a point which is uncomfortably close to the limits in terms of current treatment systems. This makes managing the catchment to minimise the cumulative impact of further risks very important. We consider that a proper application of the precautionary principle in the present case would justify requiring a dwelling density of 1:40 ha as advocated by Western Water and in line with the current Guidelines.[17]
[17]Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (23 December 2009), [91]-[92].
This conclusion was supported by the evidence of Dr Deere in respect of which the Tribunal stated:
As we have said, we accept the evidence of Dr Deere. We consider that every time an additional dwelling is permitted in the catchment, an additional, albeit unquantifiable, risk, is created of potential contamination to the quality of water. Individually, the risk from each dwelling may be minimal but the cumulative effect of these incremental risks, coupled with all the other risks which exist, mean that dwelling density in open potable water supply catchments must be curtailed.[18]
[18]Ibid, [87].
The Tribunal also relied on the multi-barrier approach to water quality protection endorsed by the Australian Drinking Water Guidelines (‘ADWG’). The ADWG state the following fundamental principles:
1.The greatest risk to consumers of drinking water are pathogenic micro organisms. Protection of water sources and treatment are of paramount importance and must never be compromised.
2.The drinking water system must have, and continuously maintain, robust multiple barriers appropriate to the level of potential contamination facing the raw water supply.[19]
[19]Australian Drinking Water Guidelines (2004) as cited ibid, [39].
The Tribunal went on to quote from the Guidelines as follows:
The multiple barrier approach is universally recognised as the foundation for ensuring safe drinking water. No single barrier is effective against all conceivable sources of contamination, is effective 100 per cent of the time or constantly functions at maximum efficiency. Robust barriers are those that can handle a relatively wide range of challenges with close to maximum performance and without suffering major failure.
Although it is important to maintain effective operation of all barriers, the advantage of multiple barriers is that short-term reductions in performance of one barrier may be compensated for by performance of other barriers. Prevention of contamination provides greater surety than removal of contaminants by treatment, so the most effective barrier is protection of source waters to the maximum degree practical. Knowing how many barriers are required to address the level of potential contamination in individual systems is important. This requires a thorough understanding of the nature of the challenges and the vulnerabilities of the barriers in place. In terms of reliability, there is no substitute for understanding a water supply system from catchment to consumer, how it works and its vulnerabilities to failure.
Finally, a robust system must include mechanisms or failsafes to accommodate inevitable human errors without allowing major failures to occur.
Catchment management and source water protection provide the first barrier for the protection of water quality. Where catchment management is beyond the jurisdiction of drinking water suppliers, the planning and implementation of preventive measures will require a coordinated approach with relevant agencies such as planning authorities, catchment boards, environmental and water resources regulators, road authorities and emergency services.
Effective catchment management and source water protection include the following elements:
odeveloping and implementing a catchment management plan, which includes preventive measures to protect surface water and groundwater
oensuring that planning regulations include the protection of water resources from potentially polluting activities and are enforced
opromoting awareness in the community of the impact of human activity on water quality.
Whether water is drawn from surface catchments or underground sources, it is important that the characteristics of the local catchment or aquifer are understood, and the scenarios that could lead to water pollution are identified and managed. The extent to which catchment pollution can be controlled is often limited in practical terms by competition for water and pressure for increased development in the catchment.
Effective catchment management has additional benefits. By decreasing contamination of source water, the amount of treatment and quantity of chemicals needed is reduced. This may lead to health benefits through reducing the production of treatment by products, and economic benefits through minimising operational costs.
In surface water catchments, preventive measures can include:
oselection of an appropriate source water (where alternatives exist)
oexclusion or limitations of uses (e.g. restrictions on human access and agriculture)
oprotection of waterways (e.g. fencing out livestock, management of riparian zones)
ouse of planning and environmental regulations to regulate potential water polluting developments (e.g. urban, agricultural, industrial, mining and forestry)
ouse of industry codes of practice and best practice management
oregulation of community and on site wastewater treatment and disposal systems
ostormwater interception.[20]
[20]Australian Drinking Water Guidelines (2004) as cited ibid, [41] and [42]. Emphasis in Tribunal decision.
The Tribunal found the ADWG to be directly relevant (a conclusion not challenged on appeal).
The National Water Quality Management Strategy, which auspices the Australian Drinking Water Guidelines, is one of the national agreements referred to in clause 11.03-2 of the SPPF, together with the Intergovernmental Agreement on the Environment. Thus the Australian Drinking Water Guidelines are directly relevant to a consideration of this application. Further, we consider that they would fall within the ambit of section 60(1A)(g) of the Act as a matter that, in the circumstances, the responsible authority (and hence the Tribunal) should consider.[21]
[21]Ibid, [43].
It cannot be disputed the ADWG provided a proper framework within which to consider the application of the precautionary principle in this case.
The concept of the precautionary principle was carefully analysed by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council[22] (‘the Telstra case’). I accept his Honour’s fundamental conclusion:
The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate.[23]
[22](2006) 67 NSWLR 256.
[23]Nicolas de Sadeleer Environmental Principles: From Political Slogans to Legal Rules (2nd ed, 2005), 155 in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256, [128].
If the conditions precedent are satisfied, the burden of showing that the threat of serious or irreversible environmental damage will not occur effectively shifts to the permit applicants to show that the threat does not exist or is negligible.[24]
If each of the two conditions precedent or thresholds are satisfied — that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty — the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.
The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution.[25]
[24]Telstra case, [150]-[155].
[25]Ibid, [150] - [151].
His Honour was, however, careful to note that precaution should not necessarily result in prohibition:
The precautionary principle, where triggered, does not necessarily prohibit
the carrying out of a development plan, programme or project until full
scientific certainty is attained.
If the precautionary principle were to be interpreted in this way, it would
result in a paralysing bias in favour of the status quo and against taking
precautions against risk. The precautionary principle so construed would ban
“the very steps that it requires”. It must be recognised that “precautions
against some risks almost always create other risks”.[26]
[26]Ibid, [179]-[180], citations removed.
In my view the Tribunal’s conclusions as to the applicability of the precautionary principle were open to it having regard to Dr Deere’s evidence which it accepted and which supported conclusions that:
(a) the risk of escape of pathogenic micro-organisms into the water supply was a threat of serious damage to the environment;
(b) there is a lack of full scientific certainty as to the degree of threat engendered by the cumulative increase of dwellings within the water catchment;
(c) the application of a 1:40 hectare dwelling density benchmark was proportional to the risk in issue; and
(d) the response advocated was not one of total prohibition of dwellings but of reasonable limitation of density only.
These conclusions were reached within the conceptual framework of the multi-barrier approach endorsed by the ADWG, which were properly found to be relevant to the Tribunal’s conclusions.
I turn then to the terms of the ground of appeal expressly directed to the Tribunal’s conclusions concerning the precautionary principle.
Ground 3 – findings concerning the precautionary principle
The Tribunal misconstrued and misapplied the precautionary principle in that it:
(i)wrongly proceeded on the basis that that [sic] the precautionary principle applied in circumstances where there was “any risk” to human health;
(ii)wrongly concluded that any risk to human health must be regarded as serious environmental damage;
(iii)failed to assess whether the risk to human health or damage to the environment was of sufficient magnitude so as to be properly regarded as a threat;
(iv)failed to make any assessment of the gravity of the risk to human health posed by the application, or the relative gravity of the risk posed by one, two, three or four dwellings;
(v)failed to make assessment of the “risk weighted consequences” posed by the grant of a permit for one, two, three or four dwellings; and
(vi)failed to make any assessment of the “risk weighted consequences” posed to water quality and/or human health of the various land use options, including the use of the land as a productive agricultural enterprise.
Ground 3(i)-(iv) are directed to [18] of the Tribunal’s reasons which stated:
In our view, any risk to human health must be regarded as serious. We consider this is implicit in the terms of the Safe Drinking Water Act 2003 and the Australian Drinking Water Guidelines. Therefore, when considering development in open potable water supply catchment areas, risk to human health is highly relevant and, because of its serious nature, must be given priority over other planning objectives. This priority is recognised in the planning policy context of the planning scheme. Water industry legislation and policy provide detailed guidance as to how to protect water resources and avoid serious risk to human health. Essentially, this is a multiple barrier approach. It is in this context that the Guidelines: planning permit applications in open, potable water supply catchment areas must be considered and applied – as one barrier in a multiple barrier approach to protect drinking water quality.[27]
[27]Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (23 December 2009), [18].
It is plain from the context in which [18] appears that it is directed to risks to human health from contamination of drinking water. It was also a matter of common ground as between the experts called on each side that the contamination of drinking water with pathogenic micro-organisms constitutes a serious risk to human health. Further that risk is recognised explicitly in the ADWG to which the Tribunal properly had regard.
Paragraph 18 of the Tribunal’s reasons further crystallises in the endorsement of a multi-barrier approach to ‘avoid serious risk to human health’. It is plain that the Tribunal proceeded by way of examining the evidence as to such a risk and not simply ‘any risk to human health.’
It is also plain that the Tribunal addressed the question of whether the risk to human health in issue was of sufficient magnitude as to be properly regarded as a threat.
It subsequently accepted Dr Deere’s evidence that it did constitute a threat warranting the application of a limitation on dwelling densities.
Likewise, it considered whether the 1:40 hectare standard was a proportional response to the threat and once again concluded on the basis of Dr Deere’s evidence that it was.
There is no substance in these grounds of appeal. The Tribunal properly regarded the precautionary principle as engaged by the facts of the case and applied it having regard to the evidence before it.
The Guidelines
I turn then to the Guidelines upon which the Tribunal founded its decision as to water quality in the first instance.
As the Court recorded in its previous decision relating to this matter, the Guidelines have their origins in a decision of the Tribunal which recognised the difficulty inherent in assessing the potential risk of cumulative developments on a site by site basis.[28]
[28]Western Water v Rozen (2008) 24 VR 133, 141, referencing Melbourne Water v Baw Baw Shire Council [1998] VCAT 535.
The interim Guidelines which preceded the current Guidelines formed the basis of a series of decisions in which the Tribunal adopted a precautionary approach and refused to permit development exceeding the 1:40 hectare benchmark.[29] Nevertheless, the Guidelines were also criticised by some Divisions of the Tribunal as a ‘blunt instrument’.
[29]Ibid, 142.
Section 60(1A)(g) of the P&E Act provides:
Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider—…
(g)any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council;
As I have previously observed with respect to the interim Guidelines although s 60(1A) provides that the responsible authority ‘may’ consider such a guideline, it is its duty to do so when it is plainly relevant to the subject matter of the permit application.[30]
[30]Returned & Services League (Victorian Branch) Inc Glenroy Sub-Branch v Moreland City Council [1998] 2 VR 406, 413-14 (Hayne JA).
Nevertheless the Guidelines comprised matters required to be considered, rather than matters required to be given effect to. This follows from their description as a ‘guideline’ and their expressed intent to ‘assist’ rather than govern a decision and from the very terms of s 60(1A)(g) of the P&E Act.
In the present case the Tribunal stated:
We accept that the special needs of open potable water supply catchments justify a limitation on dwelling density that operates over and above any zone provisions. In the absence of a specific water catchment overlay, the Government has clearly expressed a strong policy position to limit dwelling density to one per 40 hectares by adopting the Guidelines: planning permits in open, potable water supply catchment areas (May 2009).
We consider that planning permit applications in open potable water supply catchments should be determined by reference to the policy in the current Guidelines; that each of the individual guidelines should be applied cumulatively; and that the current Guidelines should take priority over competing policy objectives or decision guidelines in the planning scheme in the event of a conflict. We endorse guiding principle 1 of the Australian Drinking Water Guidelines that protection of water sources is of paramount importance and must never be compromised.
We therefore conclude that an application of the current Guidelines, in particular the density of dwellings guideline of one dwelling per 40 hectares, must lead to a conclusion that the current permit application for four dwellings cannot be supported.[31]
[31]Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (23 December 2009), {88]-[90].
The Tribunal set out the background to the current Guidelines:
Following the Supreme Court decision in Western Water v Rozen and Anor, the Minister for Planning adopted in May 2009 the Guidelines: planning permit applications in open, potable water supply catchment areas (“the current Guidelines”).
The current Guidelines have been adopted by the Minister for Planning for the purposes of section 60(1A)(g) of the Planning and Environment Act 1987. The current Guidelines apply to all open, potable water supply catchments declared to be special water supply catchment areas under Division 2 of Part 4 of the Catchment and Land Protection Act 1994. They apply to the subject land and we find that the circumstances here require the current Guidelines to be considered.
The current Guidelines restate and reinforce the dwelling density of 1:40 ha in open, potable water supply catchment areas. They make it clear that compliance with the Septic Tank Code of Practice is not of itself sufficient, a point that was made by Justice Osborn. They refer to the provisions of the SPPF relating to the importance of water quality in water catchments and section 53M of the Environment Protection Authority 1970, which provides that a municipal council must refuse a septic tank permit if a proposed onsite waste water/septic tank system is contrary to any state environment protection policy or waste management policy. SEPP Waters of Victoria requires the application of the precautionary principle to guide decisions about the protection and management of Victoria’s surface waters when considering a permit for a septic tank system. The current Guidelines state:
The proper application of the precautionary principle requires consideration of the cumulative risk of the adverse impact of onsite waste water/septic tank systems on water quality in open, potable water supply catchments resulting from increased dwelling density. [Tribunal emphasis]
In the current Guidelines, Guideline 1 regarding density of dwellings is different to the wording of the equivalent guideline in the Interim Guidelines. It now includes explicit reference to the cumulative impact of onsite waste water/septic tank systems and provides as follows:
Guideline 1: Density of dwellings
Where a planning permit is required to use land for a dwelling or to subdivide land:
othe density of dwellings should be no greater than one dwelling per 40 hectares (1:40 ha); and
oeach lot created in the subdivision should be at least 40 hectares in area.
This does not apply if a catchment management plan, water catchment policy or similar project addressing land use planning issues and the cumulative impact of onsite waste water/septic tank systems has been prepared for the catchment, and the objectives, strategies and requirements of the plan or project have been included in the planning scheme.[32]
[32]Ibid, [48]-[51]. The Guidelines themselves adopt a multi-barrier approach and after providing for a benchmark density, go on to provide by Guideline 2 with respect to effluent discharge and septic tank system maintenance, Guideline 3 with respect to vegetated corridors and buffer zones along waterways, Guideline 4 with respect to buildings and works and Guideline 5 with respect to agricultural activities (Tribunal emphasis).
The appellants submit that the present case falls within the exception to the Guidelines stated above. It is submitted that the Guideline exemption should be relevantly construed as follows:
This [the Guideline] does not apply if:
·A water catchment policy;
·Addressing land use planning issues; and
·The cumulative impact of on-site waste water/septic tank systems
·Has been prepared for the catchment; and
·The objectives, strategies and requirements of the (policy) have been included in the planning scheme.
It is further submitted that the policy contained in clauses 22.03 and 22.19 of the LPPF within the Planning Scheme is itself a ‘water catchment policy’ within the meaning of the exemption contained in the Guidelines.
The reference to ‘catchment management plan, water catchment policy or similar project …’ in the exemption is preceded by reference to such plans in the Guidelines.
The importance of water catchments is also reflected in the catchment management plans prepared by Catchment Management Authorities under Division 1 of Part 4 of the Catchment and Land Protection Act 1994. These plans assess the land and water resources of catchments in a region and identify objectives and strategies for improving the quality of those resources. They can also direct land use activities in a catchment. It is State Planning Policy (Clause 15.01-2) that planning authorities must have regard to relevant aspects of:
oAny regional catchment strategies approved under the Catchment and Land Protection Act 1994 and any associated implementation plan or strategy, including regional vegetation plans, regional drainage plans, regional development plans, catchment action plans, landcare plans, and management plans for roadsides, soil, salinity, water quality and nutrients, floodplains, heritage rivers, river frontages and waterways
…
oAny special area plans approved under the Catchment and Land Protection Act 1994.
For information about any catchment management plans that have been prepared for catchments in your region, contact the regional office of the relevant catchment management authority.[33]
[33]Department of Planning and Community Development (May 2009) “Guidelines: planning permit applications in open, potable water supply catchment areas”.
I do not accept that clause 22.03 or 22.19 are policies of the type contemplated by the Guidelines.
It is true they are planning policies directed to planning within potable water supply catchments.
Furthermore, one express objective of clause 22.03 is to apply the regional catchment strategy as adopted by the relevant regional catchment management authority. In turn the policy within the clause itself provides: ‘New land use and development shall be consistent with the relevant catchment strategy for the area.’
Clause 22.03 also addresses the question of cumulative density by allowing for its assessment in a particular case.
oProposals involving the use of septic tanks and/or other forms of waste water treatment must demonstrate that they will not be detrimental to the quality of water in the catchment.
oCouncil may require a report to be prepared certifying that the proposed density of septic tanks within the area:
·Will not overload the natural environment with effluent and lead to pollution of water courses or other properties.
·That the design and location of septic tanks is appropriate to the site and environmental characteristics of the allotment.
·That the disposal of effluent and [sic] will not result in the discharge of waste water from the site.[34]
[34]Macedon Ranges Planning Scheme, cl 22.03.
Clause 22.03 does not however itself constitute a plan or policy which has been prepared for the catchment, addressing the question of cumulative impacts of onsite waste treatment and septic tank systems. It facilitates a proposal based ascertainment of cumulative impact, but does not itself address this issue on a catchment wide basis.
Further, in my view, what the Guidelines envisage is a catchment plan or policy prepared by the Catchment Management Authority, independently of the Planning Scheme, and then incorporated in terms of its outcomes within the Planning Scheme. This has not occurred. A draft Macedon Ranges Shire Water Quality Risk Assessment was submitted to the Tribunal by Western Water as potentially forming the basis of a future policy of the type contemplated.
The appellants submit that the Guidelines do not apply because a ‘catchment management plan, water catchment policy or similar project’ as first referred to in the Guideline is not required to be included in the Planning Scheme. What is required to be included in the Planning Scheme is simply the objectives, strategy and requirements of the ‘plan or project’ only. It is submitted ‘a water catchment policy’ therefore means a policy already contained in the Planning Scheme. I do not accept this submission. The initial use of the phrase ‘water catchment policy or similar project’ means that the subsequent use of the word ‘project’ embraces ‘water catchment policy’. But in any event clause 22.03 does not have the relevant content.[35]
[35]See [72] above.
Likewise, clause 22.19, which applies to an area described as ‘northern catchment’ within the Lake Eppalock and Lauriston catchments, does not itself address the question of cumulative impacts across this catchment from waste treatment systems and septic tanks. It does not constitute a catchment management plan or policy prepared by the Catchment Management Authority.
Clause 22.03 also identifies two documents as policy reference documents[36] which might potentially constitute a catchment management plan or water catchment policy of the type in issue and which might be thought on their face to be the subject of the express objective contained in clause 22.03 ‘to apply the regional catchment strategy as adopted by the relevant regional catchment management authority.’
· ‘Campaspe Water Quality Strategy’, Campaspe Water Quality Committee, 1997.
· ‘Western Water Catchment Policy’, Macedon Regional Water Authority, 1994.
[36]See Department of Infrastructure. VPP Practice Notes ‘Incorporated and reference documents’ (August 2000).
When this matter last came before me I expressed the conclusion that on its face the first document constituted the strategy referred to in the objectives and terms of the policy contained in clause 22.03 of the Planning Scheme.
The policy reference documents identified above were not brought before the Tribunal on the rehearing of this matter, but in the interests of finality and fairness to the appellants, the Court has permitted the subpoena of such documents by the appellants following the initial hearing of the appeal and has subsequently received written submissions in respect of them.[37]
[37]The appellants initially submitted to this Court:
37On the face of it, these missing reference documents present as the type of documents which might be taken to fulfil the exemption criteria. Indeed, this was a specific conclusion of Osborn J with regards to the 1997 Campaspe Water Quality Strategy.
38Despite the fact that neither the Tribunal, nor any of the parties, had access to, or had seen, the missing reference documents, the Tribunal made findings about the contents of those documents, which were crucial to its decision and prejudicial to the appellants’ case. In particular, it concluded that the missing reference documents did not address the cumulative impact criterion in Guideline 1, and this was a crucial component of its conclusion that the exemption in Guideline 1 did not apply.
…
62The Tribunal has not disclosed the path of reasoning that led it to conclude that the policies and reference documents (including the missing reference documents) did not address the cumulative impact criteria.
(Citations omitted)
The following documents were produced in response to the subpoena:
· ‘Macedon Region Water Authority Catchment Protection Policy and Background Report’, Macedon Region Water Authority, 1994 (the ‘MRWA’) which was produced by the second respondent; and
· ‘Campaspe Water Quality Strategy’, Campaspe Water Quality Committee, 1997, which was produced by the North Central Regional Catchment Authority.
The written submissions filed on behalf of the appellants make the following concession:
9.Having examined the documents, the Applicant concedes that neither of these documents, when considered on their own, can be described as “a catchment management plan, water catchment policy or similar project addressing land use planning issues and the cumulative impact of onsite waste water/septic tank systems has been prepared for the catchment”.
10.This is because:
(i)the MRWA document does not apply directly to the Campaspe Catchment (being the catchment within which the subject land is located); and
(ii)the Campaspe Water Quality Strategy does not address the cumulative impact of onsite waste water/septic tank systems.[38]
[38]Appellants’ written further submissions, filed 12 November 2010, [9]-[10].
It follows that neither document provides a basis for invoking the exemption under the Guidelines.
The appellants, however, go on to make a series of further submissions on the basis that the MRWA is a document which addresses land planning issues and addresses the cumulative impact of onsite waste water/septic tank systems analogous to those in issue in the present case. Having read the document I have come to the conclusion that it does not address cumulative impacts in any way relevant to this case. First, insofar as it does refer to the notion of cumulative impacts, it does not address the acceptability of additional development within the relevant catchment. Further, although it recognises at least implicitly the issue of cumulative risk, it does not address that risk other than by way of the most general provision. The background paper contained in the MRWA refers to a decision of the Planning Appeals Board which identifies the issue of cumulative risk.[39] In turn the MRWA contains a general policy basis statement which commences as follows:
The basis of this policy is the need to minimise the opportunity for contaminants and pollutants to reach the water supply so as to prevent the outbreak of disease and maintain water quality consistent with recommended standards for human consumption. There are three ways in which this can be achieved in the regulation of land use and development.
The first one is to restrict the subdivision of development of land. Where possible opportunities for the development of additional dwellings within the catchment generally should be restricted particularly where these are close to the water supply. This includes the elimination of subdivision options which allow tenements to be subdivided. Other techniques must be used to protect water quality where development is to occur within the catchment area.[40]
[39]MRWA Background Report, 3.
[40]MRWA Catchment Protection Policy, 3.
I interpolate that this general policy approach could not be said to assist the appellants in any way. The policy goes on to stipulate matters that should be considered upon development applications including the overall objective of ensuring that any development or use which is approved by the authority can be conducted in such a way that water quality is protected. This mirrors Planning Scheme objectives which the Tribunal specifically found were not satisfied in the present case.
The matters to be considered by the authority include:
· factors external to the site such as stream distance from the site to the inlet pipe for the water supply, pattern and existing development in the surrounding area, the extent to which the proposal will set an undesirable precedent or assist in ensuring proper water catchment management.[41]
It could not seriously be contended that such a general provision could assist the Tribunal in determining whether the application of the benchmark density contained in the Guideline was appropriate. It adds nothing to the matters identified as relevant by the evidence before it.
[41]Ibid, 9.
It follows that it was correct for the Tribunal to conclude as it did, that the Guidelines applied to the four dwelling proposal before it and that it was in breach of them.
We do not consider that any of the local planning policies in the planning scheme or the reference documents they refer to can be considered to be “a catchment management plan, water catchment policy or similar project addressing land use planning issues and the cumulative impact of onsite waste water/septic tank systems, which has been prepared for the catchment, and where the objectives, strategies and requirements of the plan or project have been included in the planning scheme”, as contemplated by the exemption to Guideline 1. None of the policies or reference documents fulfil both criteria, in particular the cumulative impact criterion.[42]
In Knox City Council v Tulcany Pty Ltd, I observed:
The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls.[80]
[80](2004) 18 VPR 229, 234.
For these reasons I accept the appellants’ submission that the test which the Planning Scheme requires to be applied is one of acceptable and not ideal outcomes.
The question in the present case is whether the Tribunal’s reasons read in context demonstrate that it has failed to apply the correct test. The underlying task of the Tribunal is after all to reach the ‘correct or preferable’ decision on the material before it.[81]
[81]Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 433; McDonald v Guardianship and Administration Board [1993)] 1 VR 521, 528.
In this sense the preferable outcome is not to be equated with the ‘ideal’ outcome.
The sense in which the Tribunal is to be understood to have referred to the preferable outcome in the present case can be derived by reference to the context in which the expression is used.
The Tribunal initially postulated the relevant issue expressly on the basis of whether two dwellings would be acceptable.
At the hearing, both the council and Western Water conceded that in terms of applying the current Guidelines, two dwellings would be acceptable, which on a site specific basis would result in a density of approximately 1:36 ha. The Rozens said that if the Tribunal would not support their application for four dwellings, it should grant a permit for two dwellings rather than one only or rejecting the application completely.[82]
[82]Rozen v Macedon Ranges Shire Council [2009] VCAT 2746 (23 December 2009), [98].
As I have said it then concluded that, by reference to water quality and landscape and visual impact considerations, two dwellings would be acceptable.[83]
[83]Ibid, [108]-[110].
After reviewing relevant planning policy it then stated:
We therefore consider that in deciding whether one or two dwellings should be permitted, the most relevant issues to consider are sustainable land management and protecting the use of the land for productive agriculture.[84]
[84]Ibid, [119].
It concluded two dwellings were not acceptable in terms of these issues.
Overall, we consider that there are serious disadvantages associated with fragmenting ownership of this land from a rural land management perspective. Whilst the disadvantages associated with two dwellings are not as great as if four dwellings were permitted, they are still substantially greater than if only one dwelling was permitted and the land is retained in a single ownership. We consider that the land is more likely to be used for sustainable, productive agriculture if it is retained in a single ownership and that much better land management practice and environmental improvements are likely to result. Hence, on this basis, only one dwelling should be permitted.[85]
[85]Ibid, [128].
It rejected the appellants’ case as to achievement of positive environmental benefits.[86] It then stated:
We are responsible for applying the policies and objectives of the planning scheme and other documents and guidelines that we are required to have regard to by virtue of the planning scheme and the Act. On balance, a consideration of these matters and the evidence and facts of this case lead us to the conclusion that the preferable outcome is to grant a permit for only one dwelling, not two.
We acknowledge that both the council and Western Water conceded that two dwellings would be acceptable. Nevertheless, we are not bound by this concession. We consider that whilst two dwellings at a density of 1:36 hectares might be supportable on water quality and catchment management grounds, all other things being equal, having regard to issues associated with sustainable land management and agricultural productivity, we consider that one dwelling is a preferable outcome. This will result in a dwelling density for this land that is considerably more than the 1:40ha density specified in the current Guidelines instead of a density that is slightly less. We regard this as a beneficial outcome for the catchment because evidence and policy all indicate that the lower the dwelling density in open, potable water catchments the better.[87]
[86]Ibid, [130]-131].
[87]Ibid, [133]-[134].
I do not read this statement as other than a conclusion to the enquiry which commenced at [98] of the Tribunal’s reasons quoted above, namely whether two dwellings would be an acceptable outcome.
The very policies and objectives of the Planning Scheme to which the Tribunal refers adopt the notion of net community benefit and sustainable development as the touchstone of acceptable outcomes. The reference to the preferable outcome on balance is an application of this test. Read in context and as a whole, the Tribunal’s conclusion is one that the grant of a permit for two dwellings would not result in net community benefit and sustainable development. Conversely the grant of a permit for one dwelling would. At [138] the Tribunal went on to expressly state:
We have concluded that in the interests of net community benefit and sustainable development, a permit for only one dwelling should be granted.[88]
[88]Ibid, [138].
This is a finding that one dwelling is an acceptable outcome and two dwellings are not. Accordingly this ground of appeal fails. In my view the Tribunal has in fact applied the relevant test.
For the above reasons the appeal is dismissed.
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