Water Power Warning

The power and influence of catchment management authorities is increasing as higher priority is given to the protection of Victoria’s proclaimed potable water catchment areas under threat from development.

We have written previously about a number of cases in which the protection of potable water catchments has been used as the primary ground for refusing applications to develop dwellings on rural farming lots. In a recent VCAT matter, White v Hepburn SC [P857/2015], an application for a single dwelling suffered the same fate despite previously having a dwelling approved on the land.

The site is located in rural Trentham, approximately 16ha in size, and affected by a Farm Zone and Environmental Significance Overlay (that sought to protect a proclaimed catchment area).

A planning permit to use and develop a dwelling on the land was issued in 2008. Works were not commenced and that permit was extended in 2010. A further extension was refused by Council in 2012, leading to the need for a fresh application (the subject of this article).

Although Council’s position was that the application warranted support it was forced to issue a refusal by the Coliban Water Catchment Management Authority.

The VCAT decision in this instance is interesting for two reasons:

The first is that it determines the material submitted with the permit application was manifestly inadequate, and that the lack of information alone was grounds enough for the application to be refused. The application did not include house plans or even a scaled lot plan depicting the location of the proposed house. The Tribunal noted:

… the paucity of information and the poor state of this application is disturbing. While I recognise that a Council is obliged to accept an application as generally meets the requirements of s.47(1) of the P&E Act, there is a need to guard against excessive leniency. . .

This is anecdotal of what Clause 1 considers to be a vast difference between the way metropolitan/peri-urban Councils process applications and the requirements and processes of some regional municipalities, where a more lackadaisical approach is sometimes taken.

The second point of interest is VCAT’s strong reinforcement of the established policy “imperative to protect water quality in open water supply catchments”.

In this instance Coliban Water was a determining referral authority. Their objection obliges Council to refuse the grant of a planning permit notwithstanding Council’s position that the proposal is acceptable.

Although a land capacity assessment tendered with the application concluded the site was capable of meeting the EPAs Code of Practice Onsite Wastewater Management, Coliban Water’s objection was enough to ensure the Tribunal took a precautionary approach and refused the application.

Applicant’s need to be aware that land contained within proclaimed catchment areas (normally identified via an ESO to that affect) will become increasingly difficult to development with dwellings overtime. Despite any support that Council articulates it is the catchment management authority whose approval must be ultimately acquired.

Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
If you would like to reproduce or use for your own purposes any part of this publication please contact enquiries@clause1.com.au for assistance.
Clause1 Pty Ltd
Phone: 03 9370 9599
Fax: 03 9370 9499
Email: enquiries@clause1.com.au
Web: www.clause1.com.au