In February this year we reviewed a number of VCAT decisions concerning constructing dwellings within areas designated as open potable water supply catchments. A recent red dot decision from VCAT – McDonald v Hepburn SC [2013] VCAT 1538 – stresses the importance of the precautionary principle when assessing permit applications in potable water supply catchment areas. The appeal was brought by a neighbour who had objected to the proposal for the construction of a dwelling (which would not be connected to a reticulated sewerage system) on a 35 hectare property. The application, which included a Land Capability Assessment concluding that wastewater could be contained on site, had been supported by Council and the relevant water catchment authorities. A planning permit was required pursuant to a schedule to the Environmental Significance Overlay that has catchment or water quality protection as an objective.
In considering the proposal the Tribunal applied the Ministerial Guidelines for Permit Applications in open potable water supply catchments (DSE, 2012). The Tribunal found that the 2012 Guidelines apply when a permit is required for development under an Environmental Significance Overlay that has catchment or water quality protection as one of its objectives. The Tribunal found that the precautionary principle remains central to the Guidelines and that a ‘risk based approach’ needs to satisfy the precautionary principle. The Guidelines include the following statement regarding the precautionary principle:
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.
The Guidelines set out a minimum dwelling density of 1 dwelling per 40 hectares of land. This dwelling density for non-sewered dwellings may be exceeded where a planning permit is not required under the Environmental Significance Overlay, where a Catchment Policy has been prepared by the catchment authority, and if specific conditions of the Guidelines are met. These conditions include:
- the minimum lot size area specified in the zone is met;
- the water corporation is satisfied that the relevant Council has prepared, adopted and is implementing a Domestic Wastewater Management Plan;
- a judgement is to be made that the proposal does not present an unacceptable risk to the catchment in terms of its distance to waterways and water sources, the existing condition of the catchment, soil quality and land slope, the lot and dwelling pattern in the area, the intensity of the proposed development and other matters.
In this instance the water catchment authority had not prepared a Catchment Policy, nor had Council prepared a Domestic Wastewater Management Plan. The Tribunal found that the water supply authority, in supporting the proposal, had not considered the aspect of cumulative risk. The Tribunal noted:
The absence of a Domestic Wastewater Management Plan is critical, as it is no certainty that the dwellings within 1 kilometre radius of the site are not cumulatively generating an unacceptable risk to water quality. Without this plan, I find the precautionary principle is not satisfied in this instance.
Where Council has not prepared a Domestic Wastewater Management Plan for a particular water catchment, the risk based approach of the 2012 Guidelines becomes more important in satisfying the precautionary principle, where the density of dwellings exceeds 1 per 40 hectares. The Guidelines provide a logical assessment process which should be followed for these types of applications.
This decision also illustrates that, as with Cultural Heritage Management Plans, the onus is on the permit applicant to undertake the necessary background research and not rely on Council or the water catchment authority to guide the proposal to a decision.