VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P141/2020
Permit Application no. 19/0099	
CATCHWORDS	
 Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	

APPLICANT	Mr Brett Stewart Smartt	
responsible authority	Surf Coast Shire Council	
Referral Authority	The Head, Department of Transport	
RESPONDENTS	Carol Walker, Helen Verity Newell, Donna Elliot, Carly Merlo, Lisa Keddie, Debbie Jarvis & Rebecca Callahan	
SUBJECT LAND	Lot 1, 2 & 3 on Title Plan 591517W
30 Railway Terrace
DEANS MARSH  VIC  3235	
WHERE HELD	Melbourne	
BEFORE	Laurie Hewet, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	10, 11, 12, 13 August 2020	
DATE OF ORDER	8 December 2020 	
CITATION	Smartt v Surf Coast SC [2020] VCAT 1348 	

Order
No permit granted
1	In application P141/2020 the decision of the responsible authority is affirmed.
2	In planning permit application 19/0099 no permit is granted

Laurie Hewet 
Senior Member			

Appearances
For applicant	Mr Brendon James of Bowman Knox Lawyers
Mr James called expert evidence from:
•	Aaron Baulch, occupational hygienist	
For responsible authority	Mr Aaron Shrimpton of Harwood Andrews Lawyers	
For referral authority	No appearance 	
For respondents	Ms C Walker, Ms H Newell, Ms D Elliot, Ms C Merlo, Ms L Keddie, Ms D Jarvis.  	

Information
Description of proposal	Use of the Land for the disposal of clean fill, the development of earthworks and alteration to an access to a road zone.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Surf Coast Planning Scheme	
Zone and overlays	Clause 35.07:  Farming Zone 
Clause 44.02: Salinity Management Overlay (part of site)
Clause 44.04:  Land subject to Inundation Overlay (part of site).	
Permit requirements	Clause 35.07-1:  Use of land for an innominate use (disposal of clean waste).  
Clause 35.07-4: Development of earthworks associated with a section 2 use.
Clause 52.29-2:  Alteration of access to a road in a Road Zone Category 1.	
Land description	The Land has an irregular configuration with an approximate area of 10.8 hectares. The site’s irregular shape reflects its former use as a railway cutting and associated station. 
Earlier filling operations were conducted in 2018 without planning permission and has resulted in altered levels in the central northern part of the site.
The Land is currently developed with a dwelling, outbuildings, dam and mature trees generally located around the dwelling or along the permitter of the site.
The Land is otherwise undeveloped and used for grazing and cropping purposes.
The review site is bounded by Birregurra Deans Marsh Road to the north, and properties within the farming zone to the west, south and south-east. The north-eastern boundary of the Land adjoins Railway Terrace.
Railway Terrace and the land east of Railway Terrace is within the Township Zone. There are dwellings scattered through the Township Zone interspersed with vacant lots.  The closest dwelling is about 20m east of the subject land.	

Reasons

1	This is an application to review the decision of the Responsible Authority to refuse permission to use land for the disposal of clean fill and associated earth works at 30 Railway Terrace, Deans Marsh.   The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

The application results in land use conflicts inconsistent with the purpose and decision guidelines of Clause 13.07-1S – Land Use Compatibility, impacting on the residential amenity of the properties located to the east of the subject site within the Township Zone.
The application is not supported by the planning policy framework, particularly Clause 13.05-1S – Noise Abatement and Clause 13.04-2S – Air Quality. The application is deficient in relation to the management of noise and treatment of dust and particulate matter. The impact could not be managed by permit conditions and cannot achieve an appropriate management regime to would protect the residential amenity of properties in the Township Zone.
The application does not result in net community benefit and does not achieve an acceptable outcome given the residential interface to the east of the subject site.
The application does not provide for sustainable land management and is inconsistent with this decision guideline within the Farming Zone.
2	There are objectors to the application, and several are parties to this proceeding. They broadly support the Council’s grounds of refusal but also raise other matters including road and pedestrian safety, health risks arising from dust exposure, potential for environmental damage, lack of management arrangements for the operation, impact on property values and impact on the historical significance of the railway cutting.  
3	The review site has been the subject of recent filling operations which occurred over six months in 2018.  The filling occurred without a planning permit and ceased following complaints from nearby residents and investigations by the Council and the EPA.  
4	Having considered the submissions and the evidence in this case, I have concluded that a permit should not issue for this proposal.  
5	The proposed use has the potential to give rise to significant amenity impacts especially where conducted close to dwellings. The residents’ experience of the previous filling operation, the portrayal of which was largely uncontested by the applicant, is illustrative of the amenity impacts that can arise from a use of this type where it occurs close to residential areas.  
6	The planning system in Victoria aims to avoid or minimise land use conflicts.  Where land use conflicts do occur, the planning system aims to contain impacts to acceptable levels.    
7	While there is a relatively rigorous regulatory regime in place that aims to contain the impacts of land filling operations to acceptable levels, care needs to be exercised in the first instance in the decision to approve the use close to residential areas.   The closer the use is to residential areas, the more rigorous the management regime needs to be.  
8	On this site a balanced consideration of the proposal requires detailed management arrangements to have been prepared and appropriately scrutinised before a conclusion could be reached that the proposal is acceptable.  In this case I have not been presented with detailed management plans and I am not persuaded that this is something that should be required to be done by permit condition.    
9	 My reasons for refusing to grant a permit are set out below.  
what is proposed?  
10	During the Council’s processing of the application a range of different plans and supporting materials were presented in response to the Council’s requests for further information.    
11	The original plans submitted with the application depicted three stages of filling but plans subsequently submitted in August 2019 broadly referenced only that part of the site referred to as Stage 1. 
12	Formal notice of the application was given by the Council based on plans and supporting material received in August 2019.  Those plans relevantly shows earthworks over an area of 13,275m2, 13,500 m3 of imported fill, a new swale through existing fill and new crossing adjacent the existing dwelling. The finished profile would have a 1:50 slope and a central swale.
13	Based on those plans, the application material states:  
•	Approximately 18,700 of loose cubic metres of fill will be required to generate the end compacted 13,500m3 of fill.
•	Assuming the use of 10m3 trucks, this will generate 1,870 truckloads or 3,740 truck movements.
•	Fill will be sourced from ‘trusted construction companies’ in the Lorne area. The details of these companies or criteria for being a ‘trusted’ company are not stated.
•	The permit holder would review soil reports from each construction site (understood to be development soil reports) prior to delivery being authorised.
•	Truck movements would be limited to 7:30am – 4:30pm, Monday-Friday, up to a maximum of 10 movements per day.
14	The applicant for review however has submitted material which differs from that considered by the Council.  The new material limits the area of fill to a volume of 1,790 cubic metres and limits the location of the fill to the south of the site below the applicant’s dwelling with a dam and rock beaching to finish the land restoration.  
15	The ‘amended plans’ submitted with the application are a significant departure from the plans considered by the Council.  They have not however been the subject of formal amendment procedures in accordance with the Tribunal’s Practice Note PNPE9 Amendment of Planning Permit Applications and Plans.  The Practice Note specifies how amended plans are to be circulated and to whom they must be given within specified time frames. These procedures are intended to ensure that all affected parties are given advance notice of the intent to amend an application so that all parties can prepare for the hearing on an equal footing.
16	The failure of the applicant to follow the procedures set out in the Practice Note raises an issue of procedural fairness because parties have potentially been denied the opportunity to examine the amended proposal, seek advice, and prepare for the hearing accordingly.  
17	My concerns in this respect are reinforced by the late receipt of the applicant’s expert evidence.  
18	Additionally, because of the way the applicant has sought to evolve this proposal, the revised proposal has also escaped the scrutiny that would have been applied to it had formal notice and application amendment procedures been followed.  Having regard to the proposal’s sensitive interface with a residential area, comprehensive scrutiny and assessment is an essential component of the proposal’s assessment.  
19	I note that a Practice Day hearing was conducted prior to the hearing on 7 August 2020 to consider an adjournment request by the applicant for review and to consider the future conduct of the hearing.  The applicant for review did not apply to amend the application at that time.  
20	The Tribunal’s Order issued following the Practice Day Hearing amended the commencement date and the duration of the hearing and made orders about the (late) receipt of expert evidence.  
21	The Order does not mention the circulation of amended plans or the amendment of the application more broadly.  
22	My assessment of the proposal is therefore necessarily based on the application plans and supporting material presented to the Council as part of the planning permit application, and which have been subject to formal notification.    
23	I acknowledge the latest version of the proposal significantly reduces its scale and confines the fill area.  It is possible to at least contemplate that a proposal of that magnitude could be acceptable on this site.  For the reasons I have previously alluded to and which expand on below, it is not appropriate that I give effect to the revised proposal by way permit conditions in the manner proposed by the applicant. 
basis of decision
24	The applicant submits that concerns of the Council and the objectors about creating incompatible land use conflicts, need to be assessed in the context that there is nothing inherently incompatible with the proposed use and the continuing use of the Township Zone for residential purposes.  
25	The applicant points out that the proposal is most appropriately described as a short-term use intended to meet long term policy objectives.  In this respect it is submitted that by accepting clean fill onto the site the applicant will rejuvenate a property previously damaged by excavation associated with its use as a railway siding.  In this way the applicant submits that the property can be returned to a productive agricultural use which advances the purpose of the Farming Zone and the objectives of local policy.
26	It is further submitted that potential amenity impacts for residents in the Township Zone need to be considered in the context of the reasonable amenity expectations of residents in circumstances where a permitted use in the Farming Zone is proposed next to a residential area.  The applicant submits that amenity impacts generally associated with the proposal can be contained to levels commensurate with a site condition characterised by a Farming Zone and Township Zone interface.  In this circumstance the applicant submits that residents need to acknowledge and accept that activities carried out in the Farming Zone will have adverse impacts. 
27	The applicant submits that adverse off-site amenity impacts can be adequately managed by permit conditions controlling matters including noise, dust and traffic and by controlling the source of the clean fill from ‘trusted sources’ only.  
28	The applicant proposes a range of permit conditions and a requirement for a management plan to be prepared in consultation with the EPA and Council that addresses matters such as:
•	Establishment of a 24 hour hotline to a project manager.
•	Truck movements.
•	Control of dust dispersal.
•	Stormwater runoff.
•	Erosion and sediment control.
•	Litter and construction waste management.
•	Chemical contamination.  
•	Noise attenuation.  
29	In consideration of each of the above matters, the applicant submits that the granting of a permit contributes to a net community benefit because it restores a previously denuded site, is supported by the applicable policy framework, and adverse amenity impacts can be controlled to an acceptable level.  
Findings
30	Land filling operations have the potential to contribute to off site amenity impacts.  In this case, the translation of the potential impacts into reality have been demonstrated.  During the hearing I was presented with submissions from residents who experienced the previous filling operations.  Those submissions were supplemented by video and audio material depicting the operations during that period. 
31	The applicant, in response to a question from myself, quite fairly acknowledged that the videos constituted a fair representation of the previous land filling at the site. 
32	Based on the material presented by the residents, the impacts of the previous operation were significant.  The impacts especially those associated with dust, noise, truck and earth moving equipment activities are not in accordance with the reasonable amenity expectations of residents in the Township zone, notwithstanding the interface with the Farming Zone.  
33	I agree with the Council’s submission on this point. Because the Township zones is one of the planning scheme’s suite of residential zones, resident’s amenity expectations are commensurate with the residential zoning of the land. 
34	This is not to say of course that the abutting land in the Farming zone should be constrained from being used in accordance with the zone’s purpose.  However, where a discretionary use is proposed in the Farming zone at an interface with the Township Zone, as is the case here, that interface condition can be a constraint on the proposed use.  
35	Planning policy supports my findings in this respect.  The objective of Clause 13.07-1S is to protect community amenity, human health and safety while facilitating appropriate commercial, industrial, infrastructure or other uses with potential adverse off-site impacts.  Strategies under that policy are:
•	Ensure that use or development of land is compatible with adjoining and nearby land uses. 
•	Avoid locating incompatible uses in areas that may be impacted by adverse off-site impacts from commercial, industrial and other uses. 
•	Avoid or otherwise minimise adverse off-site impacts from commercial, industrial and other uses through land use separation, siting, building design and operational measures.
•	 Protect existing commercial, industrial and other uses from encroachment by use or development that would compromise the ability of those uses to function safely and effectively.
36	In addition to ensuring suitable separation between uses, the planning scheme also contemplates the minimisation of amenity impacts through siting, design and operational measures.   
37	The applicant’s submission that permit conditions can be imposed that require the preparation of a management regime may be appropriate where the review site does not have direct sensitive abuttals, and where an acceptable separation between uses has been achieved.  It is not appropriate in this case.
38	The Council’s submission, and those of the objectors, itemised several issues that the applicant’s supporting material does not adequately address in relation to for example dust monitoring and suppression, truck movements and noise mitigation.  A rigorous management regime could conceivably be prepared but these are not issues that should reasonably be left unresolved on a site with sensitive interfaces. 
39	I am also concerned that the applicant’s approach to the sourcing of clean fill is unsophisticated.  For any clean fill operation, the source of the fill is critical to the proposal’s success.  In this case the nomination of ‘trusted sources’ is lacking and the applicant’s response to my questions about that issue, did not demonstrate a complete understanding of the processes involved in sourcing clean fill from trusted sources.   
40	The net community benefits associated with granting a permit are limited.  The benefits have been identified by the applicant as providing an affordable location for the disposal of fill, and the improved agricultural capacity of the review site through the filling and levelling of the excavated part of the site.  
41	I have not been provided with any material that demonstrates that there is a scarcity of opportunities for the disposal of fill.  This is not a case therefore where I am able to conclude that the benefits of the proposal encompass fulfilling a community need for such a use.  
42	The improved agricultural capacity of the site is undefined.   The site is currently used for agricultural use.  No submissions were made to the effect that the review site will not be able to continue to be so used.    
43	These limited benefits are not sufficient to persuade me that they outweigh the disbenefits in the form of offsite amenity impacts.  
conclusion 
44	It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and a no permit issued.

Laurie Hewet 
Senior Member