VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11091/2021
Permit Application no. P435/2020	
CATCHWORDS	
Review of refusal to grant a planning permit. Section 77 of the Planning and Environment Act 1987 (Vic).  Retrospective permit.  Stockpiling of soil and spoil.  Proposed works to level the land with stockpiled material in a Commercial 2 Zone.  Brimbank Planning Scheme.  Proper definition of use.  Adequacy of application material.  Sufficiency of environmental assessment of land contamination. Assessment against requirements of planning scheme.   	

Applicant	Bernardo Motors (Vic) Pty Ltd	

Responsible Authority	Brimbank City Council	
SUBJECT LAND	730 Geelong Road
BROOKLYN  VIC  3012	
HEARING TYPE	Hearing	
DATE OF HEARING	7 and 8 March 2023	
DATE OF ORDER	14 August 2023	
CITATION	Bernardo Motors (Vic) Pty Ltd v Brimbank CC [2023] VCAT 917	

Order

Amending what the permit application is for
1	Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), what the permit applicant has applied for in permit application P435/2022 is amended to be for:  
Innominate use (to import and store soil and fill on the land); and
earthworks (levelling of the land).
Substitution of plans
2	Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), permit application P435/2022 is amended by:
(a)	Provision of the following plans filed with the Tribunal all prepared by Reeds Consulting: 
i	Plan of Features and Levels 730-740 Geelong Road Brooklyn, dated 18NOV2022 _Ref 18431-0-Version B, 
ii	730-740 Geelong Rd Brooklyn Fill Pad Bulk Earthworks – Fill Pad Site Fill Option 2 – Layout Plan (Levels and Drainage Plan), Reference 18431/FP, Drawing No 1Q6 Version B, and 
iii	730-740 Geelong Rd Brooklyn Fill Pad Bulk Earthworks – Fill Pad Site Fill Option 2 – Heat Map Plan, Reference 18431E/FP, Drawing No 1Q7 Version A.  
(b)	Provision of Cultural Heritage Management Plan 18651 titled Proposed use as a Transfer Station and Proposed construction of Warehouses at 730 Old Geelong road, Brooklyn: Cultural Heritage Management Plan – Desktop Assessment.  
3	In application P11091/2021 the decision of the responsible authority is affirmed.
4	In permit application P435/2020, no permit is granted.  

Ian Potts
Senior Member	

Appearances
For Bernardo Motors (Vic) Pty Ltd	Kate Kennedy, solicitor, Planology.	
For Brimbank City Council	Nick Sissons, solicitor, WHL Ebsworth Lawyers

Information
Description of proposal	Retrospective approval is sought to import and store soil or fill in stockpiles and part leveling of the subject land and for approval to level remaining stockpiles of soil or fill on an interim basis until the subject land is developed for future commercial purposes.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Brimbank Planning Scheme.	
Zone and overlays	Commercial 2 Zone (C2Z) – clause 34.02.
Design and Development Overlay – clause 43.02 and schedule 11 (DDO11).  
Development Contributions Plan Overlay – clause 45.06 and schedule 2 (DCPO2).  	
Permit requirements	Use of land for an innominate use in a C2Z – clause 34.02-1.  
Works in a C2Z – clause 34.02-4.  
Works on land subject to DDO11 clause 43.02-2 and clause 2 of schedule 11.  
Construction of a front fence that exceeds 1.2 metres in height – clause 43.02-2 and clause 2 of schedule 11.  
Sign in excess of 8 square metres (sqm) – clauses 34.02-8, 43.02-4 and 52.05-11.  	
Relevant scheme policies and provisions	Particular provisions: Clauses 52.05, 52.06 and 53.18.
Planning Policy Framework: Clauses 13.04-1S, 13.06-1S, 17, 21.06-2, 21.06-5, 21.09, 22.02.	

Reasons
Introduction 
1	In its original permit application in 2021 Bernardo Motors (Vic) Pty Ltd (the applicant) sought retrospective approval for a transfer station for the temporary stockpiling of soil on the land at 730 Geelong Road, Brooklyn (subject land).  The permission was sought following initial investigations by Brimbank City Council (council) and the issuing of a planning infringement notice.  The application for this use was made on the basis that the stockpiling of soil was thought by the Council to fit within the land use term of transfer station.  
2	The council refused permission for a transfer station for reasons that largely go to the insufficiency of information provided in the application.  The applicant has sought a review of this refusal.  
3	What has transpired since the application for review was made is that further spoil has been placed on the subject land and some stockpiles have been spread over the subject land.  The applicant now wishes to retain and level the remaining stockpiles across the subject land.  This was said to be stage 1 of a future development it would embark on to develop the site for a showroom under a separate permit application.  
4	Given what has transpired and in response to matters I raised about this further activity on the land, the applicant sought, and I granted an amendment to the permit application such that it would now be for an innominate use of the land (for stockpiling soil) and earthworks (leveling of stockpiles and the land).  I will address this amendment further in my reasons.
5	It is sufficient to state at this point that no party indicated a disadvantage in making this amendment and they were able to address the Tribunal about the nature of this amended proposal and each party’s respective position about this proposal, which in essence, remained the same.  
6	What follows in my reasons is an assessment of these matters and the material on which the application and council rely and an explanation about why I have refused to grant planning permission for this use and the works.
Background to this application
The proposal
7	The 2020 permit application was for: 
…works (stockpiles) on the land, construct a fence and display of business identification signage in a Commercial 2 Zone on land included within a Design and Development Overlay Schedule 11… 
8	Supporting documentation described the proposal as follows:
The works proposed on the land is to stockpile soil for later use during development on the subject site or adjoining properties in the same ownership. The stockpiles have vegetation growth across the surface which helps prevent any amenity impacts including dust, stormwater quality and any other soil displacement issues.
The stockpiles have been located on site from both the development at 720 Geelong Road and the creation of Jones Road by a Brimbank City Council contractor. The Council contractor had a verbal agreement with the landowner to temporarily store the excess soil from the road construction on site. The soil has not been removed by the Council contractor since the storage has taken place. 
The subject site has had an Environmental Site Assessment conducted by Connolly Environmental located within Attachment C, which concluded that no concentration of potential contaminants of concern exceeded the adopted assessment criteria for commercial/industrial land use in soil bores, test pits and stockpiled soil at the site. Stockpiled soil on site was considered to be suitable for on-site retention as contaminant concentrations did not exclude the adopted human health assessment criteria for commercial/industrial land use. 
The cyclone fencing will allow the advertising signage to be erected on the shade cloth fencing mesh that will be semitransparent but also protect the potential dust and soil displacement for entering adjacent properties and ultimately Kororoit Creek to the west. The advertising is temporary and will be removed once future development commences on the land. The shade cloth will also act as a visual barrier to the stockpiles on site, and help provide dust suppression from potential high winds.
9	An updated site plan provided to the council following a request for further information set out the general layout of the proposal.  This is reproduced below.  
Figure 1 – Site plan
10	Now, in this proceeding, in part due to questions raised at the commencement of the hearing, the applicant submits that the stockpiled soil will stay on the site, apart from any contaminated material which it submits will be transported to an appropriately licensed facility.  No further soil or spoil material is proposed to be imported onto the subject land.  It was submitted that the scope of the permission being sought therefore only relates to the following elements:
•	Retaining stockpiles on the subject land and levelling this material in anticipation of a future commercial building development.  
•	The 1.8 metre high cyclone fencing.
•	Signage on the fencing.
11	The substantive change to the original application, as set out earlier, is the additional works to level the site.  This has been variously described during this proceeding as involving the spreading the stored stockpiles, compaction and then shaping the land (by cut and fill) for drainage.   
12	I have the benefit of submissions about how the use that was originally applied for evolved into one for a transfer station during the permit application process.  It is not necessary to detail all that transpired between the council and applicant during that process.  Ultimately the requests for further information and other interactions led the application being amended for the retrospective use of the land as a transfer station (stockpiling of soil) at least partly based on the council’s understanding that some of the stockpiled material would be removed and hence was being held on the land in a temporary capacity.  
13	Given the explanation above however, it is apparent that the retrospective permission being sought was not for the temporary storing of the spoil/stockpiles, any sorting or recovery processes before transferring the material for disposal, recycling or use elsewhere, as set out in the planning scheme’s definition of a transfer station.  What is being sought is retrospective planning permission to import and store the stockpiled material on the site and to conduct earthworks to level or change the topography of the land.  Such a use and the works do not fit within the definition of a transfer station.  
14	It was for this reason that I invited the applicant to formally apply to amend the permit application to be for an innominate use, being the stockpiling of soil, fill or spoil that has been sourced from offsite along with proposed works to level the land.    
15	I record here that the council did not object to the amendment of this use and the inclusion of the works as now described.  Its position was that ultimately amending the application was a matter for the applicant and that the council’s case against the proposal was not prejudiced by the amendment, though time was required to address plans that were tabled.    
16	These plans, which the applicant produced during these preliminary matters detail the existing site levels and set out what are said to be draft or proposed finished levels and a ‘heat map’ of cut and fill.  These plans however encompass the subject land and a portion of the adjoining land to the east (at 740 Old Geelong Road).  They have nevertheless been relied on this proceeding to demonstrate the works being proposed.  
17	While I have included these plans as part of the amendment to the application, this should not be taken to mean that the inclusion of the additional land was acceptable.  If my decision had been to grant a permit, conditions would have been required to amend these plans to remove any reference to this additional land.  That said, the fact the intention of the applicant appears to have included works on additional land in conjunction with the works on the subject land only add weight to the council’s contentions about the lack of clarity around this permit application and the applicant’s intentions.  
The grounds of the parties
18	The applicant submits that:
•	Notwithstanding the amendment to the use, the essential elements of the original proposal remain the same and are now pressed in this proceeding.  These are:
o	The stockpiles soil/spoil are intended for use during development of the subject land. 
o	The stockpiles of soil/spoil have originated from various offsite sources, though as I will come to these are not limited to development of 720 Old Geelong Road or Jones Road.
o	The subject land has been subject to an Environment Site Assessment (ESA) to determine the presence of contamination.  (The adequacy of this assessment is in contention and a matter I will return to later in these reasons.)   
o	The shade cloth to be hung on the 1.8 metre high cyclone fence will act to control of raised dust from the land.  
o	The printed signage on the shade cloth is innocuous, low key and temporary.  Because of the semi-permeable nature of the shade clothe and the printing it would not add visual clutter to what is a robust industrial area and would not be perceptible from the Geelong Road interface.  
o	A silt fence on the southern boundary will treat runoff from the southern boundary that would enter drainage that discharges to Kororoit Creek to the west of the subject land.  
o	Proposed land levelling will include a swale drain to also collect and treat stormwater runoff from the land.  
•	The site’s context is one of a robust, industrial like nature with a quarry and landfill to the north, a business park to the east, Geelong Road/Princess Highway on its southern boundary and the water depot and container storage facility to the west.  This should be taken into account when considering potential amenity issues.  
•	Clause 21.09 of the Brimbank planning scheme (planning scheme) is relevant given the industrial like nature of the area notwithstanding the commercial zoning of the land and surrounds.  
19	Overarching all of this is the applicant’s position that what is sought is permission to make good the condition of the site so that dust emissions and runoff will be managed, and the land will be ready for future development for a commercial use.  
20	It submits that sufficient detail has been provided to allow proper assessment for the permissions being sought and that grounds of the council arise largely from its misconception and misapprehension if the proposal being a transfer station for ongoing receipt and dispatch of stockpiled material.  It says that if any further detail is required about the land levelling earthworks and drainage then this can be addressed through conditions for secondary consent and approval as can environmental management requirements for the stockpiles (while being retained), the works and final finished conditions.  
21	The council submits that the proposal lacks adequate detail, clarity and specificity about the status of the land’s contamination, the prevention of dust emissions, and management of stormwater/runoff drainage.  It is also said to have not proposed any landscaping in response to the scheme’s requirements.  The council maintains that the proposal will have an adverse impact on the area’s amenity and environment principally through dust emissions and runoff borne sediment from the subject land.  The potential presence of contaminants in the soil only adds to the Council’s apprehension about risks to offsite amenity, human health and the environment.  
22	The potential for offsite impacts and the lack of detail in the application are said by the council to be unsatisfactory when regard is had to the objectives, requirements, and decision guidelines of various policy clauses of the planning scheme, the Design and Development Overlay (DDO) that applies to the land and the clause 53.18 (Stormwater Management in Urban Management) provision of the planning scheme.  
23	The council response to the proposed use of shade cloth with printed signage is that the this would be an excessive amount of signage that would create clutter or otherwise be visually imposing.  
24	In respect to the matter of the signage, the applicant submits that this would be temporary until the land is developed for the proposed showroom and that this limited time of display coupled with the printed form of the signage on shade cloth means it would have minimal visual impact or clutter.  However, the applicant’s position is that while desired, the signage is not pressed as necessary and would accept its deletion from the proposal if this were ultimately the position of the Tribunal.  
25	Finally, I will record here that the grounds of refusal about car parking requirements under clause 52.06 continued to be pressed by the council after considering the amended nature of the use.  
26	For completeness I set out here that my decision has not turned on this question of car parking provisions.  Clause 52.06 is engaged because what is proposed is a new use.  As submitted by the Council, an innominate use triggers requirements for a car parking plan to the satisfaction of the responsible authority under clause 52.06-8.  
27	The applicant’s position is that no car parking is proposed or required.  It submits that only construction machinery and workers vehicles would have access to the site during the earthworks and no formal parking areas for these vehicles is necessary for these works.  It says once works are completed the use would in fact be benign and not generate any parking requirements.  
28	As did the council, I accept that there is sufficient area on the subject land to accommodate worker and machinery parking.  However, I do not accept that a plan or some form of formal response is not necessary during this proposed use and the associated works.  The use as now set out and acknowledged by the applicant would generate traffic to and from the site for workers, machinery and any collection and offsite transport of contaminated soil.  A parking plan would appropriately address features such as access lanes, driveways or cross overs, levels of areas set aside for vehicle parking and how these would be accommodated on the land without interfering with the proposed use and works.  
29	That said, the lack of a parking plan has not been a determinative matter in my decision, though the lack of such a plan adds weight to the conclusion that this proposal has not sought to adequately address the requirements of the planning scheme.  
The determinative issues
30	The proposal is now understood to encompasses the following features that require planning permission:
•	Use of the land in a Commercial 2 Zone (C2Z) for an innominate use to store stockpiled soil or spoil   
•	Works – constituting earthworks and construction of a silt fence on land in a C2Z and subject to Schedule 11 of the Design and Development Overlay (DDO11).
•	Construction of a 1.8 metre high fence to the frontage of the property that is greater than 1.2 metres in height on land subject to the DDO11
•	Signage in a C2Z pursuant to clause 52.05 and subject to requirements set out under DDO11.  
31	It is not my intention to address the issue of signage in detail in these reasons.  It is not a determinative issue given the position of the applicant.  
32	What has been determinative of this application is how this proposal would manage the storage of stockpiled soil and construction spoil from other land, and the proposed works respond to the requirements of the scheme.  In fact, the primary determinative issue is whether the proposal as now laid out in this proceeding has been adequately supported by the application material.  
33	In order to address this primary question and the overall acceptability of the proposal, I will first set out the relevant provisions of the planning scheme. 
The statutory framework
Planning scheme permissions
Commercial 2 Zone
34	Clause 34.02-2 of the planning scheme requires that any use of land in the C2Z must not detrimentally affect the amenity of the neighbourhood, including by the emission of dust.  A permit is required for carrying out of works.  An applicant for use must provide information, if appropriate, about a number of matters.  In this application the most relevant matters include:
•	The purpose of the use and the type of activities to be carried out.
•	The likely effects on adjoining land, which includes but is not limited to various offsite impacts (noise, traffic).  I would read this inclusive list to therefore be able to encompass any emissions of dust or runoff/sediment.
•	Maintenance of area not required for immediate use.  
35	An application for works must be accompanied by appropriate information about:
•	Scaled plans.
•	Relevant ground levels and layout of proposed works.
•	Proposal landscape area.
•	External storage and waste treatment areas.
•	Construction details of drainage and other utility areas.
36	Decision guidelines direct attention:
•	The drainage of the land.
•	Any interim use of land.
•	Responsibility for maintaining landscaping.
•	Stormwater discharge.  
Design and Development Overlay
37	The design objectives of DDO11 include:
…[improving] the amenity and appearance of the Brooklyn Industrial and Commercial Precinct.
…[creating] an attractive environment to work and visit.
…[ensuring] that development incorporates appropriate design measures that will protect surrounding residents and businesses from adverse visual, noise, odour or dust impacts. 
…[ensuring] best practice environmental design, operation and storm water reuse is used for new development and business operations. 
…[improving] water quality and discharge rates into Kororoit Creek and other drainage outlets. 
…[improving] the image and create a sense of identity for the precinct. 
…[ensuring] high quality landscape treatments contribute positively to the street edges and to the setting of buildings. 
…[minimising] visual clutter, including excess signage and external storage.
38	As well as permission for the works under the head clause of this overlay, permission is required under DDO11 for the portion of the proposed fence along the front boundary as it exceeds 1.2 metres height in the C2Z.  
39	DDO11 also sets out requirements under the headings of ‘Access and connection’, ‘Environmental conditions’, ‘Landscape’ ‘Image and identity’ and ‘Fences’.  Relevant to this application are requirements for:
Vehicle crossovers, driveways, access lands and car spaces must be treated with an all-weather seal or other durable surface. This requirement cannot be varied with a permit.
For land within a C2Z:  Site frontages should be designed to allow for the future provision of on street bicycle paths.
All external areas including storage areas, should be sealed and landscaped to prevent dust generation. 
Development should incorporate Water Sensitive Urban Design, stormwater treatment, detention and reuse initiatives.
Landscape areas should have a minimum width of 5 metres along street frontages and a minimum width of 2 metres for side streets.
For land within a C2Z:  Development should contribute to the boulevard character of Geelong Road.
For land within a C2Z:  A front fence should: 
Not be higher than 2 metres; 
Be transparent. 
Be black or green plastic coated, if chain mesh. 
Not include barbed wire.
40	Clause 4 of DDO11 sets out the following relevant requirements for signs:
Signage should be integrated into the built form of the building. 
Free standing signage should be low and integrated into the front landscape treatment. 
Signage should be limited to avoid visual clutter and repetition.
41	Decision guidelines which must be considered, as appropriate to this application include in addition to the design objectives of DDO11:
The Municipal Planning Strategy and the Planning Policy Framework.
Whether the development has any adverse visual impact on adjacent areas of public open space.
Whether the development will make a positive streetscape contribution.
For land with a frontage to Geelong Road, seek the views of VicRoads.  
Policy framework
42	The following sets out aspects of the policy framework that are relevant to the matters put for and against this proposal. 
43	Though zoned for commercial use, the Industrial Framework plan at clause 21.09 confirms the subject land to be located in the Brooklyn Industrial Area.  Contextually the subject land is to provide for commercial or (limited) industrial use consistent with this location.  
44	The strategic vision for industrial land in Brimbank is to protect and support development of industrial precincts.  However development of this land is to also minimise environmental impacts and achieve high quality industrial design.  Design responses are to take account of the fact that the subject land is located at a gateway/entrance to the municipality.  The provision of industrial and commercial land and its development for the economic benefit of Victoria is supported through policy at clauses 11.01, 17.02-1S and 17.03-1S.  
45	Local policy at clause 21.09 supports these objectives by seeking to strengthen and support the municipality’s role as a location for a range of commercial and industrial activity.  This policy also recognises that sustainable land practices and environmental management has not been a feature of past industrial activity in Brimbank.  This is said to have resulted in on-site and off-site amenity impacts from odour, dust, pollutants and contamination (amongst other impacts).  In response to past practices, this policy seeks:
Best-practice community safety and environmental standards should be a feature of future industrial development, to mitigate any off-site environmental impacts and provide appropriate threshold distances from nearby sensitive uses. 
46	The policy objective to ensure industrial activity minimises environmental risks through various strategies, including the application of the precautionary principle ‘when deciding on appropriate mitigation measures to consider future implications to health and/or the environment. 
47	Relevantly, in respect to the Brooklyn Industrial and Commercial Precinct, policy requires as appropriate:
•	A dust management plan that includes real time dust monitoring and response for land uses with high truck movements, dust generating activities and/or sites with areas that are unsealed.
•	The location of stockpiles, the storage of materials and areas for the processing of recycled materials accord with best practice.
•	Trafficable areas on sites to be appropriately sealed.
•	New developments …. to implement best practice technologies to minimise off site amenity impacts.
48	This policy sets out application requirements.  It is true that policy cannot be applied as law; the application of policy and policy directions and requirements are discretionary.  Nevertheless, due regard to such policy requirements must be given in the exercise of that discretion.  Here, given the specificity of the policy to the subject land and the nature of the use and works being proposed, I agree with the council that these policies requirements should be given proper application.  
49	Clause 21.05 of the planning scheme establishes that the value of natural environments within the municipality includes its waterways. These waterways include Kororoit Creek.  This policy seeks amongst other outcomes to reduce the effects of pollution from stormwater discharge.  This aligns with policy at clause 14.02-1S and 14.02-2S.  
50	State policy at clause 13.04-1S directs that contaminated land and potentially contaminated land is used and developed safely.  It is a clear strategy to:
…ensure contaminated or potentially contaminated land is or will be suitable for the proposed use, prior to the commencement of any use or development.
51	Policy guidance calls for consideration of the potential for contamination impacts on proposed use or development through assessments that are proportionate to the risk, and that are consistent with established national guidelines or statutory requirements.  
The particular provisions about stormwater
52	Given my earlier reasons that addressed the car parking and sign matters, I will here limit my considerations of the particular provisions to the requirements for stormwater management in urban development under clause 53.18.
53	The purpose of this clause is to ensure that amongst other outcomes, stormwater is managed to mitigate the impacts of stormwater on the environment, property and public safety.
54	Clause 53.18-3 set outs requirements for an application.  An application is required to meet the objectives of clauses 53.18-5 and 53.18-6 and should meet the standards of these clauses.  An application must also:
… be accompanied by details of the proposed stormwater management system, including drainage works and retention, detention and discharges of stormwater to the drainage system.
55	Relevant to this application, clauses 53.18-5 and 53.18-6 set out objectives for works and site management.  These include, inter alia:
To encourage development that reduces the impact of stormwater on the drainage system and filters sediment and waste from stormwater prior to discharge from the site. 
To protect drainage infrastructure and receiving waters from sedimentation and contamination.
56	Under the applicable standards W2 and W3:
a.	The stormwater management system should be designed to meet current best practice performance objectives contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999); and
b.	An application:
…should describe how the site will be managed prior to and during the construction period and may set out requirements for managing:
•	Erosion and sediment.
•	Stormwater.
57	Decision guidelines call for consideration of:
Any relevant water and stormwater management objective, policy or statement set out in this planning scheme.
The capacity of the site to incorporate stormwater retention and reuse and other water sensitive urban design features.
Whether stormwater discharge from the site will adversely affect water quality entering the drainage system.
The capacity of the drainage network to accommodate additional stormwater. 
Whether the stormwater treatment areas can be effectively maintained.
Principles applied in retrospective permit applications
58	The commonly accepted approach in the assessment of retrospective permit applications is the principle drawn from the reasons of the Planning Appeals Board in Van Egmond v City of Knox, Bassett & Ors that ‘the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained’.  This principle is cited with approval by Osborne J in Knox City Council v Tulcany Pty Ltd & Ors (Tulcany).  In Tulcany the court also accepted that:
The statement of principle contained in Van Egmond does not suggest the Tribunal should look only at the application plans. To the contrary, it expressly identifies the paradox that unlawful commencement of a use (or construction of a development) may enable a better appreciation of its impact on its context than plans or other descriptions of a proposal ever could. This is self-evidently correct. 
59	These principles continue to be applied by various divisions of the Tribunal in retrospective permit application and I do not intend to depart from these.  However, it is necessary to observe that this application, as now amended, involves both retrospective and prospective elements.  Retrospectively, stockpiling, retention and levelling of soil and spoil materials on the subject land has occurred.  The works now proposed to level or spread the remaining stockpiles are prospective in nature.  
assessment of The determinative issues
60	As I have set out earlier, the primary position of the council against this proposal is that the application lacks sufficient detail to warrant approval as it cannot be properly assessed against the requirements of the scheme and be determined as to whether it is an acceptable planning outcome.  The other key issue raised by the council is about the about the contamination status of the land and whether that has been adequately determined. 
61	Both these issues go to the adequacy of the application and supporting materials being relied on by the applicant.  In its submissions, the council referred to previous decisions by Tribunals and predecessors about the adequacy of an application.  Having considered these decisions it is difficult to discern any fully framed principles other than the somewhat trite observation that in any application a judgement must be made based on the relevant requirements of the scheme and whether a proposal has sufficiently addressed these requirements in order for the decision maker to be satisfied that an acceptable planning outcome will be achieved.  That such an approach is required is supported by section 60 of the Planning and Environment Act 1987 (Vic) (PE Act) which sets out amongst other matters, that what a responsible authority must consider before deciding on an application includes:
..any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development;…
62	Further, clause 65.01 of the planning scheme requires a responsible authority to not only consider the matters under section 60 of the PE Act, as appropriate, but also:
a.	Any significant effects the environment, including the contamination of land, may have on the use or development
b.	The orderly planning of the area.
c.	The effect on the environment, human health and amenity of the area.
d.	Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
63	The level of detail required needs to be such that the responsible authority and a Tribunal on review, can adequately respond to these responsibilities when discharging the decision-making duty under the scheme.  
64	This has been the basis of my assessment of this proposal regarding the two determinative issues in this proceeding.  
Does this application respond sufficiently to the requirements of the scheme
65	The difficulty with an innominate use such as this application is that the principal purposes of the C2Z are directed to use and development of land for commercial purposes.  Here, in the applicant’s own terms, the use is an interim one before future commercial use and development occurs.  Nevertheless, a purpose of any use of the land so zoned is to ensure that there is no adverse effect on the safety and amenity of adjacent more sensitive uses.  To that end application requirements and decision guidelines I have set out above, direct the provision of sufficient information to enable a responsible authority and now the Tribunal on review, to determine:
•	The purpose of the use and the types of activities which will be carried out; and
•	The likely effects on adjoining land.  
66	In respect to the works, sufficient information is to be provided to enable the decision maker to be satisfied about:
•	the scale of the works (as determined through scaled plans);  
•	relevant ground levels and changes to those levels, which in this case will influence drainage.  Such levels may also be relevant to the impact of the scale of future built form in terms of elevation within the surrounding built form and landscape setting;  
•	the adequacy of landscaping;  
•	the scale and nature of external storage, i.e. stockpiles in open areas; and
•	the adequacy of proposed drainage works and their construction and control over stormwater discharge.  
67	The need to understand how the subject land will be drained and whether the design response will achieve the satisfactory urban drainage requirements is reinforced by the requirements of clause 53.18 and DDO11 which I have set out above.  Collectively these provisions of the scheme require that an application be accompanied by details of how the site will be managed prior to and during the construction period, to address erosion, sediment and stormwater runoff, with an overall aim of demonstrating how the proposal will achieve the purposes of both these provisions, including the particularly relevant objectives in this case of protecting drainage infrastructure and receiving waters from sedimentation and contamination.  
68	The application, as now made, is seriously deficient in providing the necessary detail to be so satisfied.  
69	None of the above matters have been detailed or dealt with satisfactorily in this application.  The applicant’s position is one of largely leaving the detail of landscaping to future development plans and addressing the other matters by way of permit conditions.  
70	Initial propositions for a silt fence and now the land form plans do little to address the specificity of the scheme’s requirements, doing little more than indicating the potential to create a swale that would direct runoff to a discharge point on the boundary via some form of beaching and detention system.  There are no accompanying assessments of the adequacy of this swale or detention in respect to flow capacity nor treatment methods of such stormwater flows and the efficacy of these methods to remove sediment or other contaminants. 
71	Reliance on assertions that vegetation cover will be established or maintained on existing stockpiles or on re-graded land simply lack the details about timing, establishment of vegetation (e.g. watering and seeding programs) and ongoing inspection and maintenance schedule needed to satisfy the decision maker that the proposal is acceptable. 
72	The requirements of DDO11 seek to address amenity issues that may arise from the industrial or commercial use of the subject land.  The importance these requirements are underscored by the local planning policy at clause 21.09.  The matter of raised dust as well as stormwater management are central themes of this overlay and this policy.  
73	The applicant’s response to these matters that this is a robust industrial like neighbourhood where some dust impacts may occur is unacceptably dismissive of the objectives of this overlay and the underlying policy support.  The reliance on shade cloth around fencing and references to establishing vegetation to control raised dust are, like the approach to stormwater, vague and lacking in demonstrative detail about their efficacy.  
74	The response to provide for these design and other management requirements to permit conditions is unacceptable considering the requirements of the planning scheme.  At best it is an exercise that at best seeks to ‘kick the can down the road’ and at worst deflects the responsibility to demonstrate the acceptability of the proposal away from the applicant.   
75	It follows from the above that I find this application lacks the necessary detail about the management of stormwater and dust emission from the use and the works to be satisfied that the proposal acceptably addresses the potential for adverse impacts on adjoining land, activities and environments.  
The history of soil/spoil stockpiling and the contamination status of the site
76	The applicant’s submissions set out the following history of stockpiling on the subject land: 
The Applicant is the registered proprietor of a number of sites in this part of Brooklyn.
Since around 2017, soil has been stockpiled on the Subject Land. The soil generated from the development of the surrounding land could not be accommodated on the source site or otherwise re-used. In particular, the soil came from the Applicant’s development of the Brooktrade Business Park at 720 Geelong Road, Council’s construction of Jones Road (to the north-east of the Subject Land) and Greater Western Water’s construction of the Brooklyn Depot at 73 Old Geelong Road.
Before the soil was first deposited on the Subject Land, an Environmental Site Assessment was conducted by Connolly Environmental, which concluded that the stockpiled soil was suitable for on-site retention.
77	The Council’s materials include aerial and site photographs of the subject land from November 2007 to February 2023.  These images show the presence of stockpiles of soil, gravel, solid fill materials (such as bricks and other masonry rubble) which I have termed in these reasons to be spoil.  
78	The aerial photographs and site images show the following sequence of activity:
•	The 2010 aerial photographs:  Across approximately the northern two thirds of the subject land (and adjoining land to the west) was subject to disturbance that resulted in the absence of most stockpiles present in pre-2010 images.  It would appear from the ground markings that the stockpiled material had in fact been spread across the subject land.  
•	The 2011 aerial photograph:  Fresh stockpiles of material located on the southern portion of the subject land on and over the eastern boundary.  
•	The 2012 aerial photographs:  Shows 2011 stockpiles have been disturbed and new stockpiles are now present in the southern portion of the subject land.  
•	Aerial photographs between 2012 and 2014: Adjoining land to the immediate west was developed.  Concurrent disturbance of areas and stockpiled material has occurred on the subject land.  October 2014 aerial images show material changes to the subject land, with areas having been subject to movement of surface materials and fresh stockpiles of material within the central and norther portions of the lot.  The area along the Old Geelong Road frontage has been subject to disturbance and levelling.  
•	Aerial imagery September 2015:   Additional stockpiles have been deposited in the south-west area of the subject land.  
•	Aerial imagery 2016:  Additional stockpiles appear which continue to be present at the time of this proceeding.
•	Site photographs from 2021 to 2022: Show fresh stockpile soil and spoil placed on the subject land and grading/levelling works in early 2023. 
79	From my review of the tendered aerial and site imagery it is apparent that stockpiling of spoil on the subject land has occurred since 2007 and not from 2017 as claimed by the applicant.  By the applicant’s own admission this continued up until 2022 and has included spoil from 720 Old Geelong Road (the water depot) during that land’s development and from 750 Old Geelong Road when works were undertaken to seal that land in response to a Pollution Abatement Notice.  
80	In response to the concerns about the contamination status of this spoil and the subject land, the applicant relies on previous assessments of site conditions to support this application.  Reliance was placed for the most part on an environmental site assessment of the land conducted in 2014 (the 2014 ESA).  
81	The 2014 ESA contains a summary of previous soil investigations across the subject land and 720 Old Geelong Road.  These encompassed:
a.	Two geotechnical assessments in 2009 that identified the presence of fill to a maximum depth of 1.6 metres (below the existing surface).  The fill was identified as either ‘silty sand/clayey sand with inert material’ or  ‘loose medium density material with inert material’.  Natural soil was described as stiff basaltic clay.  The presence of fill across the site is consistent with the arial photography indicating the spreading of imported materials onto the site prior to 2010.
b.	An environmental site assessment in 2010 identified historical use of the site for storage of guano/phosphate (1950s to 1980s) and for storage and recycling of bricks and other materials (1980s to 2000).  An area of elevated polyaromatic hydrocarbons (PAH) was identified at one test pit.  The concentration of the PAH meant that the soil at this location was not considered suitable for commercial land use.  
c.	Another environmental site assessment was conducted in 2010 across only the subject land (termed area 2).  
d.	An environmental site assessment of the adjoining land (720 Old Geelong Road/water depot) was conducted in 2012.  
e.	A landfill gas risk assessment was conducted for the adjoining land with results indicating non detectable to low concentrations of methane below EPA assessment criteria.  
82	As well as recording the above assessments, the 2014 ESA proceeded on the basis that:
a.	The results from that 2012 assessment were included in the 2014 report because stockpiled soil from the water depot land (No 720) was relocated to the subject land prior to the construction of the depot.  
b.	Additional sampling was conducted around the location of the elevated PAH concentrations during the 2014 ESA as well as an assessment of an ‘additional’ hotspot.  
c.	Relevant soil sampling results from the 2010 ‘Area 2’ assessment were include in the 2014 assessment.   
83	The 2014 ESA identified:
•	The presence of fill comprising of ‘brown silty clay and silty sand to a maximum depth of 1.3 m’ containing ‘inert material’ said to include ‘crushed rock, brick fragments, organic matter, concrete fragments, ceramic fragments, asphalt, plastic and wood fragments’.  
•	The site containing a large number of stockpiles of unknown origin but known to include spoil from the neighbouring water depot land.  New and old stockpiles were distinguished on the basis of vegetation cover with many being stated to be present since stockpiling first began in 2010.  
•	The stockpiles comprised of ‘brown silty sand, silty clay, sandy clay and clayey sand’ containing inert material of:
…crushed rock, concrete and brick. Small amounts of wood, asphalt, shell, metal and organic matter were also noted in one or more stockpile samples.  
•	The presence of organic and inorganic contaminants below human health industrial or commercial investigation levels (HIL D) which applied at the time of that investigation.  However these elevated levels were above ecological investigation levels (EILs) that applied for some of these contaminants ( i.e. zinc, benzo(a)pyrene, and phosphorus).  These exceedances were said not to be a risk to the environment because the land was covered by vegetation, limiting risks of raised dust and sediment borne runoff, and there were no sensitive ecological values applicable to the site.  These contaminants were present in the fill and in stockpiled material.  
•	Chemical analysis of stockpile samples identified the presence of cadmium and fluoride that were above EPA Category C concentrations (that applied at that time) and therefore if removed from site would have to be disposed of to a licensed landfill.  The concentrations of these contaminants however did not preclude the land from commercial or industrial use of retained on the subject land.  
84	An assessment of soil material imported on to the subject land from 750 Old Geelong Road in 2021 (2021 ESA) identified:
•	Approximately 6,200m3 of material was to be assessed because it was to be potentially removed from the land at 750 Old Geelong Road.
•	The material comprised of silty gravel and sandy gravel.
•	The material to be excavated and imported offsite contained concentrations of total recoverable hydrocarbons (TRH) and inorganic contaminants (cadmium, copper, lead, nickel, tin, zinc and fluoride) above criteria applicable to EPA fill material.
•	A 95% Upper Confidence Level (ULC) for the average TRH concentration to be above category D for off-site disposal and therefore classified the material to be EPA category D contaminated soil if it were imported from that site.   
85	In all, the two ESA’s account only for the condition of the land up to and including 2014 and the importing of spoil onto the land from 750 Old Geelong Road in 2021/2022.  There is no assessment of the land and spoil imported onto the land between 2014 and 2022, as indicated had occurred in the Council’s collation of aerial photographs and site imagery.  
86	Further the 2014 ESA indicates the presence of contaminated soil and stockpiled spoil that contains contaminants above environmental investigation levels as well as certain contaminants in concentrations above fill criteria at the time of that assessment.  The 2021 ESA indicates that the spoil imported onto the site contained contaminants above EPA fill material.  Together, these assessments indicate the presence of contaminated soil or spoil on the site that would be a potential environmental risk if material migrated off the site as dust or sediment in stormwater.   
87	Given these findings, I am not satisfied that the proposal has properly identified and addressed the potential for contamination to be present on the land or in fact addressed the presence of contaminants that are indicated to be on the land.  Nor has this proposal sought to address the presence of this material, other than by oral submissions to remove unsuitable contaminated soil from the site.  
88	To permit the storage of stockpiles in this manner (retrospectively and prospectively) and to permit the use of such material for works in anticipation of a future development on this land would be outcomes that are inconsistent with clause 13.04-1S and add to the concerns about impacts from raised dust and sediment in stormwater runoff.  
Conclusions
89	I agree with the applicant that the best outcome for the subject land is that works should be undertaken to remedy its unsightly condition and improve management of drainage and dust emissions. However, this is not sufficient to support the approach taken in this application.  The scheme requires sufficient detail to enable an assessment against its objectives and purposes so that the decision maker, be it a responsible authority or tribunal on review, can ascertain whether an orderly and acceptable planning outcome will be achieved. 
90	It follows from my reasoned assessment of this proposal that it lacks sufficient detail and assessment of site conditions to warrant support.  The reliance placed on dealing with these deficiencies through permit conditions would not repair these deficiencies in an orderly manner.  
91	For these reasons I will affirm the decision of the responsible authority and direct that no permit be granted.  

Ian Potts
Senior Member