A recent Supreme Court case and subsequent rehearing at VCAT (Rozen v Macedon Ranges SC [2009] VCAT 2749) has raised the significance of Victoria’s potable water catchments in planning decisions and sounds a warning to those seeking to develop land within a proclaimed catchment area.
In this case the planning permit applicant had sought approval for the use and development of four dwellings on the subject site, which consisted of four adjoining lots. Each lot was between 15-24 hectares.
The subject site abuts the Campaspe River which drains into the Campaspe Reservoir and supplies potable water to the Township of Woodend. The subject site is contained within a Rural Conservation Zone (RCZ). Under the RCZ a permit is required to use and develop a dwelling. Only one dwelling is permitted per lot and dwellings must meet the usual requirements associated with power supply, water supply, vehicle access and effluent disposal. In addition the site is affected by an Environmental Significance Overlay (Eppalock Proclaimed Catchment) and a Vegetation Protection Overlay.
Council originally refused to grant a planning permit for the four dwelling proposal. The permit applicant subsequently lodged an Application for Review to VCAT which resulted in the Tribunal ordering that a planning permit be issued for the proposal. That decision was then Appealed to the Supreme Court by Western Water (who had objected to the granting of the permit). The Appeal to the Supreme Court was successful. The Supreme Court held that the Tribunal had made an error in law by misstating and misapplying the precautionary principle and ordered VCAT to rehear the matter. At the rehearing, taking on board the directions of the Court, the Tribunal found it could not support a proposal for four dwellings and instead approved the use and development of a single dwelling on the land.
The critical issues for planning applicants in this is case are:
- The weight given to the precautionary principle and;
- The consideration of the accumulative risk posed by the development.
Those who have followed our recent editorials relating to climate change and coastal risk management will be aware that the precautionary principle is described in the following terms by the Intergovernmental Agreement on the Environment:
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.
In the current case it was essentially held that any risk to the supply of potable water was a ‘serious’ environmental risk and as such the precautionary principle should be evoked when assessing planning applications of this type.
What is interesting, is that the Tribunal and all parties to the proceedings concurred with the expert evidence presented at the hearing that stated if the waste water treatment systems proposed were installed, operated and maintained appropriately that no risk of contamination to the surface or ground waters would result. Despite supporting this evidence the Tribunal went on to say;
72. However, we consider the real issues are the risks associated with waste water treatment systems that do not function as designed (for various reasons) and the increased presence of people generally within the catchment.
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87. … 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.
88. 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).
Planning permit applicants should take it on notice that the Tribunal will take a conservative (precautionary) approach to any application to develop land within a proclaimed catchment area and appear to be strongly supportive of the one dwelling per 40 hectares guideline recommended by the Government’s guidelines.
Those wishing to seek more information about developing land within a proclaimed water catchment should read; Maurice and Esther Rozen v Macedon Ranges SC [2009] VCAT2746, DPCD Guidelines (May 2009): Planning permits in open, potable water supply catchment areas or contact our office.
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