VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P597/2024
Permit Application no. PP-731-2023 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic); pet grooming; onsite wastewater management system; wastewater; stormwater.	

Applicant	Bradley Broadway	

Responsible Authority	Greater Geelong City Council	

SUBJECT LAND	5/42-50 Moon Street
MOOLAP VIC 3221	

HEARING TYPE	Hearing	

DATE OF HEARING	10 February 2025	

DATE OF ORDER	12 February 2025	

CITATION	Broadway v Greater Geelong CC [2025] VCAT 137	
Order
No permit granted
1	In application P597/2024 the decision of the responsible authority is affirmed.
2	In planning permit application PP-731-2023 no permit is granted.

Claire Bennett
Member			

Appearances
For Bradley Broadway	Valerie Akers	
For Greater Geelong City Council	Alexander Lawrence, Statutory Planner of Greater Geelong City Council
Assisted by Jonathan Carter, Environmental Health Team Leader of Greater Geelong City Council	

Information
Description of proposal	Use of land for a retail premise (Pet Grooming) (Retrospective).	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Greater Geelong Planning Scheme	
Zone and overlays	Industrial 1 Zone (IN1Z)
Design and Development Overlay – Schedule 20 (DDO20 – Industrial 1, 2 and 3 Zones)
Special Building Overlay (SBO)	
Permit requirements	Clause 33.01-2 Use of land for a section 2 use (Retail Premises) in the IN1Z	
Relevant scheme policies and provisions	Clause 02.03-2 (Environmental and landscape values)
Clause 11.03-6L-03 (Moolap-Point Henry)
Clause 13 (Environmental risks and amenity)
Clause 13.03-1S (Floodplain management)
Clause 14.02-2S (Water quality)  	
Land description	The subject land is regularly shaped. It has a frontage to Moon Street of 76.2 metres, a depth of 41.24 metres, and a site area of 3,143 square metres.	

  Reasons
What is this proceeding about?
1	Bradley Broadway (‘applicant’) seeks a review of the decision of Greater Geelong City Council (‘Council’) to refuse to grant a permit for the use of land for a retail premise under section 77 of the Planning and Environment Act 1987 (‘PE Act’). 
2	The applicant seeks a retrospective planning permit to use the land at 5/42-50 Moon Street, Moolap for a retail premise. The purpose of the retail premises is for pet grooming. 
3	The applicant noted that, when they moved to the subject land in February 2022, ‘planning approval was not sought as the estate agent wrongly believed that no permit was required as dog grooming is classed as a retail business’. The applicant has since been informed that this information was incorrect and applied for a planning permit. The applicant accepts Council’s position that a pet groomer falls under the classification of retail premises and therefore requires permission as a section 2 use under the Industrial 1 Zone (‘IN1Z’).
The proposal
4	The subject land is currently used as a retail premises for the purpose of pet grooming and the planning permit application was lodged to bring the existing operation into compliance with the requirements of the Greater Geelong Planning Scheme (‘Planning Scheme’).
5	The application proposes the following use: 
a	Operate between 7:45am and 5:30pm Monday to Friday with operations on Saturdays if required.
b	Provide various pet grooming services, such as washing, clipping, brushing, teeth cleaning, etc.
c	Employ 1 head groomer, 3 casual dog washers, and 1 casual driver.
d	Have a maximum of 8 pets on-site at any time.
e	8 car parking spaces are provided on the land for the proposed use.
f	A driver provides transport of many of the pets between their homes and the subject land for grooming.
g	Wastewater resulting from the use is stored in an existing underground septic tank and is emptied by a wastewater removal company.
6	It is noted that the construction of buildings or carrying out of works is not proposed under the application.
Site and surrounds
7	A description of the subject land and surrounds was provided, as summarised below:
•	The site is developed with various modest warehouse buildings. 
•	Unit 5 is the second unit from the south boundary of the site. It has a roller door and glazing on its frontage, with fences and a gate separating the at-grade car parking area from the street. 
•	The locality is an industrial precinct in Moolap that is bound, generally, by Coppard’s Road in the west, Moolap Station Road in the east, Portarlington Road in the north, and High Street in the south. 
•	No reticulated sewer system services the locality, but there is a sewer main that runs along Portarlington Road.
•	North of Portarlington Road are wetlands and a former saltworks, which is subject to flooding and at risk of sea level rise, and which harbours seabirds and their habitats and shelter as identified in the Moolap Coastal Strategic Framework Plan (Department of Environment, Land, Water and Planning, 2019) (‘MCSFP’), a policy document to clause 02 and clause 11 of the Planning Scheme. 
•	West and south of the industrial precinct is residential land. 
•	To the east is generally agricultural land.
•	The surrounding land to all sides is affected by the same zone and overlay controls.
Relevant planning context
8	The subject land is within the IN1Z and is affected by a Design and Development Overlay – Schedule 20 (‘DDO20’) and a Special Building Overlay (‘SBO’). 
9	Pursuant to clause 33.01-1, planning permission for use of land for a section 2 use (Retail Premises) is required in the IN1Z.
10	The following policies of the Municipal Planning Strategy (‘MPS’) and the Planning Policy Framework (‘PPF’) are most relevant to the assessment of the application:
a	clause 02.03-2 (Environmental and landscape values)
b	clause 11.03-6L-03 (Moolap-Point Henry)
c	clause 13 (Environmental risks and amenity)
d	clause 13.03-1S (Floodplain management)
e	clause 14.02-2S (Water quality)
What are the key issues?
11	Council refused to grant the retrospective planning approval on the following grounds:
i	Insufficient information has been supplied that demonstrates the proposed land use is capable of the appropriate management and disposal of wastewater generated on-site in the absence of a connection to the reticulated sewer system.
ii	The proposal fails to appropriately respond to the decision guidelines of clause 33.01-2 of the IN1Z given the absence of the availability of and connection to services (being, the reticulated sewer system).
iii	The proposal fails to implement the following clauses of the Municipal Planning Strategy and the Planning Policy Framework of the Planning Scheme:
a) 	clause 02.03-2 (Environmental and landscape values);
b) 	clause 11.03-6L-03 (Moolap-Point Henry);
c) 	clause 13 (Environmental risks and amenity);
d) 	clause 13.03-1S (Floodplain management); and
e) 	clause 14.02-2S (Water quality).
iv	The proposal fails to appropriately respond to the decision guidelines of clause 65.01 of the Planning Scheme in that the proposal would not result in the orderly planning of the area and has the potential to result in unacceptable effects on the environment.
12	The statement of grounds for review is as follows:
All Clauses as outlined in the Refusal to Grant a Planning Permit. This refusal is based on not having a reticulated sewer system, however no water is released to either the ground or to the storm water drain, it all goes to a septic tank and when the alarm goes off in the grooming salon a local registered waste water company is called immediately, and the septic tank is emptied at the facility operated by Barwon Water. All products used are environmentally friendly. This property is on an industrial estate and is well maintained, unlike many around it.
Wastewater management
13	Council’s refusal of the application is based on the concern that the proposed use is unable to appropriately manage wastewater in the absence of a connection to the reticulated sewer system and that, in the event of wastewater generated by the proposed use being mismanaged, there is the potential for contaminated runoff to environmentally sensitive areas to the north.
14	The decision guidelines of the IN1Z at clause 33.01-2 require consideration of the availability of and connection to services. Given that the subject land is not serviced by a reticulated sewer system, Council says that the use is unsuitable for the subject land and premature, as there is not yet any sewerage connection.
15	The MCSFP, a policy document at clause 11.03-6L-03 (Moolap-Point Henry), specifies that water based or heavy waste producing industries cannot be located in the Southern Precinct (which includes the subject land) due to the lack of sewer reticulation. 
16	The MCSFP also contemplates the future provision of reticulated sewer as a goal for the Southern Precinct: 
The Southern Precinct will remain a location for medium and light industry and employment opportunities. Improved infrastructure, streetscapes and landscapes will benefit the amenity, business attraction and environmental outcomes of the precinct.
The Southern Precinct requires an improvement in drainage infrastructure to lessen the impacts from flooding on the businesses and adjacent areas. This will attract more warehouse type industries currently reluctant to locate here due to flooding and potential for destruction of stock. The improved drainage and the provision of a reticulated sewer will also help reduce the impacts of untreated stormwater on Corio Bay and the marine environment and would allow water-based industries to establish in the precinct. An infrastructure assets analysis (see Implementation Strategy) will help to understand and facilitate these changes.
17	The reference in the MCSFP to the future provision of a reticulated sewer is what Council refers to when they say that the use is unsuitable for the subject land and premature, as there is not yet any sewerage connection.
18	The MCSFP also provides a precinct direction and actions for the management of the wetlands and a former saltworks, North of Portarlington Road, which is subject to flooding and at risk of sea level rise, and which harbours seabirds and their habitats and shelter.
19	Other policies in the MPS that have relevance to the considerations set out in clause 11.03-6L-03 and the MCSFP include:
•	Clause 02.03-2 (Environmental and landscape values), including the strategic direction to reduce the amount of runoff from urban development and improve the quality of stormwater runoff entering waterways, estuarine and marine waters.
•	Clause 13 (Environmental risks and amenity), which sets out that planning should identify, prevent, and minimise the risk of harm to the environment, human health, and amenity through land use and development compatibility, and effective controls to prevent or mitigate significant impacts.
•	Clause 13.03-1S (Floodplain management) has the relevant objective to assist the protection of floodplain areas of environmental significance or of importance to river, wetland or coastal health. It also has relevant strategies to locate use and development that involve the storage or disposal of environmentally hazardous industrial and agricultural chemicals or wastes and other dangerous goods (including intensive animal industries and sewage treatment plants) outside floodplains unless site design and management is such that potential contact between such substances and floodwaters is prevented, without affecting the flood carrying and flood storage functions of the floodplain.
•	Clause 14.02-2S (Water quality) has the objective to protect water quality. Its relevant strategy is to ensure that land use activities potentially discharging contaminated runoff or wastes to waterways are sited and managed to minimise such discharges and to protect the quality of surface water and groundwater resources, rivers, streams, wetlands, estuaries and marine environments.
20	These policies in the MPS provide a need for the locality to be serviced by a reticulated sewer system to avoid negative environmental outcomes having regard to nearby sensitive environments. 
21	Given that the appropriate handling of wastewater is an important matter for the locality, as identified in the framework plan under clause 11.03-6L-03 and supporting policy, wastewater management of the proposed use is therefore a critical matter to be addressed.
22	Clause 65.01 of the Planning Scheme also requires the consideration, as appropriate, of orderly planning of the area and the effect on the environment, human health and amenity of the area.
23	In relation to orderly planning, the applicant raised issues about two other businesses near the subject land - another pet grooming business at 1 Nobility Street, Moolap and the Geelong Animal Welfare Society at 325 Portarlington Road, Moolap – querying whether these businesses were also required to meet these requirements. 
24	In response, Council advised that, whilst those businesses had no bearing on this decision, they are different situations because:
•	The OWMS system at 1 Nobility Street consists of a treatment plant with surface irrigation (as opposed to what we have here, which is a septic system which is pumped out when required). Council further advised that the OWMS at 1 Nobility Street was approved in 2007 for a different use, the use had since changed, and it has only just come to Council’s attention that it is a doggy daycare service. Council advised that business will need to apply for a OWMS for the current use. 
•	The Geelong Animal Welfare Society is connected to reticulated sewer system.
25	The subject land and locality are not serviced by a reticulated sewer system. 
26	Council submits that a retail premises for the purposes of pet grooming is a land use that, by nature of its operations, would produce more wastewater than, for instance, other types of ‘dry’ industry or retail. 
27	The applicant submits that the wastewater generated by the use is pumped into a septic tank and then pumped out by a wastewater company. Further, they state that, when the septic tank reaches three quarters full, an alarm is triggered. The applicant then calls a local registered wastewater removalist to have the wastewater removed.
28	Council submits that the applicant has not been able to demonstrate that the proposed use is able to appropriately manage wastewater and that there are potential issues of mismanagement of the existing system. As evidence of this, Council submits that the Council’s Environmental Health Unit advised that they had received a complaint about the pump-out septic tank overflowing into the local stormwater drainage system and that the operator has encountered difficulties in arranging regular emptying of the tank.
29	The applicant disputed this stating that they had not had any issues arranging for the tank to be pumped out and they cannot think of anyone who would have complained about the septic tank overflowing into the local stormwater drainage system. 
30	Council ultimately submits that, given there is no reticulated sewer system that services the review site, and that insufficient evidence has been supplied that demonstrates the proposed use is capable of managing wastewater in its absence, the proposal is considered premature. 
31	When questioned by the Tribunal as to whether there were any measures that would demonstrate that the proposed use is able to appropriately manage wastewater in the absence of a connection to the reticulated sewer system, Council advised that their primary position was that the use was unsuitable for the subject land and premature as there is not yet any sewerage connection.
32	In the alternative, if a permit were to issue, Council provided the Tribunal with a draft permit condition that they consider would be an attempt to appropriately manage wastewater in the absence of a connection to the reticulated sewer system. Council provided a caveat that the draft condition was unusual and based on an EPA condition for Onsite Wastewater Management Systems (‘OWMS’). Council also reiterated that, should an application be submitted for an OWMS permit, the likelihood of approval is minimal. 
33	The draft condition had multiple requirements, including a Wastewater Management Plan to the satisfaction of the responsible authority, which required the installation of a pump-out tank with a minimum storage capacity of 15,000 litres and the specification of the anticipated volume of wastewater to be generated.
34	The applicant submits that they currently have a 3,000 litre pump-out tank and that there is no space for a 15,000 litre tank. 
35	This is indicative of the applicant’s inability to demonstrate, to Council’s satisfaction, that the proposed use is able to appropriately manage wastewater in the absence of a connection to the reticulated sewer system.
Conclusion
36	The Tribunal accepts Council’s submissions that there is insufficient evidence that the proposal would result in acceptable outcomes having regard to the relevant decision guidelines of the IN1Z and Clause 65.01 including:
•	The availability of and connection to services. 
•	The orderly planning of the area. 
•	The effect on the environment, human health and amenity of the area. 
37	The Tribunal finds that the proposed use is not consistent with the relevant provisions of the Planning Scheme and the MCSFP because:
•	Pet grooming is a land use that, by nature of its operations, would produce more wastewater than other types of industry or retail.
•	The subject land and locality are not serviced by a reticulated sewer system.
•	Under Clause 11.03-6L-03 (Moolap-Point Henry), the MCSFP specifies that water based or heavy waste producing industries cannot be located in the Southern Precinct due to the lack of sewer reticulation.
•	The use is unsuitable for the subject land and premature as there is not yet any sewerage connection.
•	The applicant has not been able to demonstrate that the proposed use is able to appropriately manage wastewater in the absence of a connection to the reticulated sewer system.
•	In the event of wastewater generated by the proposed use being mismanaged, there is the potential for contaminated runoff to environmentally sensitive areas north of the locality, which does not accord with relevant objectives and strategies of policy at clause 02.03-2, clause 13, clause 13.03-1S, and clause 14.02-2S. 
38	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Claire Bennett
Member