VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1110/2020
Permit Application no. YR-2019/743	
CATCHWORDS	
Section 82 of the Planning and Environment Act 1987, Green Wedge Zone Schedule 4, Animal Crematorium, Bushfire planning, Amenity considerations, Noise, Odour, Country Fire Authority, Environment Protection Authority	

Applicant	Jeanette Bankes	

Responsible Authority	Yarra Ranges Shire Council	
Respondent	Matthew Davis	
Referral Authorities	Environment Protection Authority	
other parties	Country Fire Authority	
SUBJECT LAND	660 Old Warburton Road, Wesburn  	
HEARING TYPE	Hearing 	
DATE OF HEARING	4 May, 10 & 17 June 2021	
DATE OF ORDER	23 June 2021	
CITATION	Bankes v Yarra Ranges SC [2021] VCAT 670	

Order
1	In application P1110/2020 the decision of the responsible authority is varied. 
2	In planning permit application YR-2019/743 a permit is granted and directed to be issued for the land at 660 Old Warburton Road, Wesburn in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Use and development of an animal (horse) crematorium.

Tracey Bilston-McGillen
Presiding Member		Phil West
Member	

Appearances
For Ms Jeanette Bankes	Appeared in person.	
For Yarra Ranges Council	Mr Manjusha Pitty, town planning consultant, Divergent Planning Pty Ltd.	
For Environment Protection Authority [EPA]	No appearance.	
For Mr Davis	Mr Michael Davis and Ms Danielle Davis appeared in person.	
For Other Parties: Country Fire Authority [CFA]	Mr Glenn Cockram.	

Information
Description of proposal	Use and development of an animal (horse) crematorium.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Yarra Ranges Planning Scheme.	
Zone and overlays	Green Wedge Zone Schedule 4 [GWZ4].
Bushfire Management Overlay [BMO].
Environmental Significance Overlay [ESO].	
Permit requirements	Clause 35.04-1.  A permit is required for the use of an animal crematorium.
Clause 35.04-5.  A permit is required for buildings and works associated with the use.
Clause 35.04-5.  A permit is required to construct a building that is within 100 metres from a dwelling not in the same ownership.	
Key scheme policies and provisions	Clauses 11, 12, 13, 15, 17, 21.06, 21.07, 23, 35.04, 51.03, 52.06, 53.10 and 65.	
Land description	The review site is located on the northern side of Old Warburton Road.  The site is irregular in shape with a frontage to Old Warburton Road of 88 metres and an overall site area of 3.4 hectares.  The Yankee Jim Creek traverses the northern portion of the site.
The southern-most portion of the site is cleared and has a moderate slope of 25 metres form the south eastern corner towards the mid-western section.  The rear or northern half of the site is densely vegetated and has a steep slope.  
The site is occupied by a single storey dwelling and associated outbuildings.  There are two vehicle crossovers along the frontage of the site.  
The adjoining site at 670 Old Warburton Road accommodates a dwelling.	
Tribunal inspection	We inspected the site and surrounds.   	

Reasons

Figure 1: Aerial photograph of review site and surrounds.

1	The Davis’ (respondent) applied to Yarra Ranges Shire Council (Council) to use the site for the use and development of an animal (horse) crematorium at 660 Old Warburton Road, Wesburn (as seen in Figure 1 above).  It is important to understand what is proposed.  The Tribunal was advised that the purpose of the facility is to cremate equine (horses).  Horses are either euthanised by a qualified Veterinarian or the applicant has a humane euthanisation licence.  The horses are transported via a purpose built trailer and directly loaded into the cremator via a winching system.  It is proposed to extend the existing shed to house the cremation machine. 
2	The proposed shed is located on the western side of the existing shed and is to measure 3 metres in height or 5 metres to the roof.  The flue (incinerator stack) is installed at a height of eight metres.  The shed is setback 45 metres to the west boundary, 45 metres to the east, 35 metres to the southern boundary and 16 metres from the existing dwelling located on the land.  The shed is to be constructed with metal sheet cladding to match the existing.
3	The proposed cremation machine is the TB-AB Equine Extra Large Cremation Machine (Addfield) with a maximum load capacity of 2,000 kilograms and would be able to fit up to one large horse.
4	The proposed hours of use include Monday to Friday 7am – 6pm and Saturday and Sunday 9am to 5pm with proposed usage of 10 to 25 times (horses) per month.  It is proposed to be operated by two people (husband and wife on site), with the scope for potentially employing a part or full time employee. 
5	Council issued a Notice of Decision to grant a planning permit subject to conditions.  An adjoining neighbour Ms Bankes (applicant for review), lodged an application for review of this decision with the Tribunal.  The applicant raised a number of concerns including inappropriate location, noise, offensive use, noxious emissions/smell/air quality, reminder of death and causing mental trauma and general health issues, distress to other animals in the area, biological hazard, hours of operation, fire hazard, loss of view and property devaluation.
6	The Country Fire Authority (CFA) although not a referral authority were considered by the Tribunal as a party of interest to the proceeding, submitted that there was insufficient consideration to matters of bushfire management.  
7	The Environment Protection Authority (EPA), conditionally consented to a permit subject to conditions including no emissions of noise and/or vibrations form the premises, offensive odours must not be discharged beyond the boundaries of the premises and no litter originating from the premises is not to present beyond the boundaries of the premises.  The EPA also reminds the permit holder to meet their obligations to comply with the Environment Protection Act 1970 at all times.
8	The respondent submitted that the proposed use and development is acceptable having regard to the provisions of the planning scheme further stating that they would comply with any condition imposed by the Council, EPA and any other authority.  
9	The proposed use can result in an emotional response.  However, the Tribunal is bound to consider the use within the confines of what is a relevant consideration of the Yarra Ranges Planning Scheme (planning scheme) and not emotions.  In making these statements a helpful case to refer to is Mason v Greater Geelong CC where Deputy President Dwyer stated as follows:
Role of Tribunal
[16]	The Tribunal has previously indicated that town planning is not a panacea for all perceived social ills, nor is the hearing of a planning matter at VCAT a forum for addressing all issues of social or community concern. It has also acknowledged that objectors often mistakenly view VCAT as a forum to express their general opposition to a proposal, and express frustration when the tribunal does not seem to have regard to issues that they consider important. However, VCAT is limited by its statutory jurisdiction. It can only decide a matter based on the actual application before it, and for the limited purpose for which a planning permit is required, and having regard to the relevant provisions and decision guidelines in the Planning and Environment Act 1987 and in the planning scheme that relate to that permit requirement. Those are the planning controls approved by the Minister for Planning and local government, and which are intended to balance competing interests in favour of net community benefit and sustainable development.
[17]	The views of the community or the local council are important, but within the confines of what are the relevant and determinative planning issues in a particular case. It is not simply a matter of what certain individuals like or don’t like, or what they want or don’t want. Indeed, VCAT itself doesn’t decide the matter according to the individual likes or dislikes of the presiding members. VCAT must objectively apply the law and the provisions of the planning scheme, as it exists, to the application before it. In doing so, VCAT relies upon relevant probative material, legal authority and logical reasoning in considering the grounds of a party in a proceeding. VCAT is not an investigative body, and cannot give great weight to unsupported assertions – particularly in relation to matters outside its own expertise or beyond the ambit of its statutory role or discretion.
10	Our consideration of this matter is against the provisions of the planning scheme, the zoning provisions, planning policy and amenity considerations.  
Interim order
11	At the commencement of the hearing on 4 May 2021, a number of matters were raised.  One of the matters included a submission of the CFA advising that they were not in a position to assess whether the proposed use and development is capable of assessing the bushfire risk until bushfire hazard site and landscape assessments are undertaken by the applicant and a bushfire management plan and bushfire emergency plan are provided for assessment.  
12	The Tribunal highlighted that it had reviewed clause 13.02-1S (Bushfire Planning) and considered the application of the policy requires the Tribunal to consider whether the proposed use and development may create a bushfire hazard and how it might be addressed.  The Tribunal therefore made the following interim orders:
The following information is to be prepared and circulated to all parties to the proceeding including:
[i]	An assessment against clause 13.02-1S Bushfire Planning of the Yarra Ranges Planning Scheme.
[ii]	Any further information considered necessary to address the matters identified in the applicant for review’s submission including matters of:
•	Achieving the State Environment Protection Policy Air Quality Management.
•	Environment Protection Authority Regulation, Noise from Industry in Rural Victoria.
The information is to be circulated to all parties by 1 June 2021.
In response to the further information received, a copy of any revised submission to be relied upon at the hearing is to be emailed to the Tribunal and other parties by 4.00pm 8 June 2021.  
Ms Bankes is to circulate a re-formatted copy of her submission to all parties by 4.00pm 7 May 2021.
13	Following the order, the following submissions were received.
CFA
CFA advises that it has received and assessed the Bushfire Management Statement (BMS) submitted on behalf of the permit applicant by Fire Front Consultancies (dated 30 May 2021, version 1).
CFA also advises that it concurs with the assessment of bushfire risk, the likely bushfire scenarios and addresses the bushfire provisions of the planning scheme, specifically the Planning Policy Framework, Clause13.02 - Bushfire and consideration of Clause 53.02 - Bushfire Planning and the recommended bushfire mitigation measures.
The Bushfire Management Plan (BMP) submitted with the BMS proposes the following mitigation measures:
•	The shed extension constructed to BAL29 standard, including a simple design to avoid accumulation of embers, construction in colorbond, no windows or skylights and on a concrete slab.
•	Location of the extension at least 10 metres from the existing dwelling.
•	Defendable space based on the highest classified vegetation risk of forest (32 metres to the north and west and 25 metres to the south and east) in accordance with Table 2 to Clause 53.02-5.
•	Retention of a clump of four trees (shown as trees 4 to 6 on the plan) within the defendable space along the driveway to the south (this is considered acceptable and would not pose any significant additional risk).
•	Dedicated water supply for fire fighting purposes of at least 10,000 litres with compliant access for a fire truck.
The draft Bushfire Emergency Plan (BEP) proposes that on days of a Fire Danger Rating of Severe, Extreme or Code Red that no employees will be present on the site and the cremator will not operate.
The BMS proposes that a spark arrester be installed on the incinerator stack to ensure no sparks are emitted from the cremator into the atmosphere and minimise the risk of a fire starting from the proposed use.
To ensure all those measures are incorporated into the BMP, it is recommended that the BMP be amended to include:
•	Vegetation management for defendable space with regard to 5 metre separation of tree canopies to exclude trees 3 to 6.
•	The Construction standard of the extension to also refer to provision and maintenance of spark arrester on incinerator stack.
CFA also recommends that a six (6) metre area around the LP Gas vessel/tank be free of all combustible materials, including vegetation, as per AS 1596: The storage and handling of LP Gas – Section 6.2.5(e): On-site storages of other dangerous goods and flammable and combustible materials. That requirement should be illustrated and/or described in the BMP.
Accordingly, if the Tribunal is of a mind to grant a permit, CFA recommends the following bushfire safety conditions be included:
[1]	Before the development is occupied or the use commences, a bushfire emergency plan (BEP) to the satisfaction of the Responsible Authority and CFA must be submitted to and endorsed by the Responsible Authority.  The BEP must clearly describe the proposed emergency management arrangements and should address the following matters:
[a]	Premises details
•	Describe property and business details.
•	Identify the purpose of the BEP stating that the plan outlines procedures for:
i	Closure of premises on any day with a Fire Danger Rating of Severe, Extreme or Code Red.
ii	Evacuation (evacuation from the site to a designated safer off-site location).
iii	Shelter-in-place (remaining on-site in a designated building).
[b]	Review of the BEP
•	Outline that the plan must be reviewed and updated annually prior to the commencement of the declared Fire Danger Period.
•	Include a Version Control Table.
[c]	Roles & Responsibilities
•	Detail the staff responsibilities for implementing the emergency procedures in the event of a bushfire.  
[d]	Emergency contact details
•	Outline organization/position/contact details for emergency services personnel
[e]	Bushfire monitoring procedures
•	Details the use of radio, internet and social networks that will assist in monitoring potential threats during the bushfire danger period.
•	Describe and show (include a map) the area to be monitored for potential bushfire activity.
[f]	Action Statements – trigger points for action
i	Prior to the Fire Danger Period
•	Describe on-site training sessions and fire equipment checks.
•	Identify maintenance of bushfire protection measures such as vegetation management (including implementation of protection measures required by any endorsed Bushfire Management Plan).
ii	Closure of premise during forecast Fire Danger Rating of Severe, Extreme or Code Red days 
iii	Outline staff notification procedures and details of premises closure (including timing of closure).
iii	Evacuation 
•	Identify triggers for evacuation from site.  For example, when evacuation is recommended by emergency services.
•	Details of the location/s of the offsite emergency assembly location.
•	Transport arrangements for staff including details such as: 
•	Number of vehicles required 
•	Name of company providing transportation
•	Contact phone number for transport company
•	Time required before transportation is likely to be available
•	Estimated travelling time to destination
•	Actions after the bushfire emergency event.
iv	Shelter-in-place 
•	Show the location and describe the type of shelter-in-place.
•	Triggers for commencing the shelter-in-place option.
•	Procedures for emergency assembly in the shelter-in-place building.
Premises closure
[2]	The use of the cremator approved under this permit must not operate after 10.00am on any day with a declared Fire Danger Rating of Severe, Extreme or Code Red.
Bushfire Management Plan
[3]	The Bushfire Management Plan prepared by Fire Front Consultancies, Version 1, dated 30/05/2021, must be amended as follows:
•	Vegetation management for defendable space with regard to 5 metre separation of tree canopies to exclude trees 3 to 6.
•	The Construction standard of the extension to also refer to provision and maintenance of spark arrester on incinerator stack.
•	A six (6) metre area around the LP Gas vessel/tank be free of all combustible materials, including vegetation, as per AS 1596: The storage and handling of LP Gas – Section 6.2.5(e): On-site storages of other dangerous goods and flammable and combustible materials.
The amended bushfire management plan be endorsed to form part of the permit and must not be altered unless otherwise agreed in writing by the CFA and the Responsible Authority.
Mandatory condition to Clause 44.06-5 – Building and works
[4]	The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.
Respondent
14	The respondent submitted a number of documents including:
•	An acoustic report prepared by ‘Waveform Acoustics’.
•	Updated bushfire management reports prepared by Firefront Consultancies.  The applicant further advised that they have agreed to fit a spark arrester to the flue as per the CFA’s recommendation. 
•	Report from Ektimo and attachments from EPA regarding the SEPP-AQM found that exceeding the design criteria in the areas surrounding the site to be low.  It is noted that the EPA also stated that it has no objections to Council issuing a permit, subject to conditions being adhered to of which we can do. 
•	Horse and Pony weight guide obtained from NSW DPI website. 
Applicant for review
15	As requested, the applicant re-submitted information in a different format, noting that it was a re-organisation of material, not new material. 
Summary
16	The key issues identified for consideration of this matter include:
i	Is the proposed use appropriate having regard to the zoning provisions and planning policy framework?
ii	Does the proposal provide an adequate response to planning considerations surrounding bushfire risk?
iii	Are there any unreasonable amenity impacts such as noise or odour that would have a detrimental impact on the adjoining residential property or surrounding area?
17	Having regard to the submissions, the provisions of the planning scheme and our site inspection, we will order that the decision of the Council is varied, and a permit is issued subject to conditions.  Our reasons follow.
Planning scheme provisions

Figure 2: Review site, location of existing buildings.  The existing shed is proposed to be enlarged.

Zoning
18	The site is zoned GWZ4, with the purpose of this zone includes:
To implement the Municipal Planning Strategy and the Planning Policy Framework. 
To provide for the use of land for agriculture. 
To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources. 
To encourage use and development that is consistent with sustainable land management practices. 
To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses. 
To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes. 
To protect and enhance the biodiversity of the area.
19	The use of a horse crematorium is a Section 2, permit required use. The proposed buildings and works to the shed also require a planning permit for buildings and works for Section 2 use of the clause.  The clause includes a number of decision guidelines relating to general issues, rural issues, environmental issues, design and siting issues, primary school or secondary school issues.  
20	The existing site is currently occupied by a single storey dwelling and associated outbuildings.  The site has two vehicle crossovers although from our inspection, it appeared the northern most crossover was the one that provides access to the rear of the site.  The site accommodates a mix of indigenous and exotic vegetation and notably adjoins the Yarra State forest.  
21	The site does not sit in a pristine, residential area.  It is a location that is mixed with not only various dwellings but a poultry farm, a Council waste transfer station and disused landfill, a pipeline reserve, a community and business park (ECOSS), the Yarra State Forest and Wesburn Park Reserve.  
22	In considering the appropriateness of the use, at the State and regional level, the zoning GW4 seeks to support development that provide for environmental, economic and social benefits while protecting productive agricultural areas.  Council submitted that the GW4 decision guidelines relevant to this land use emphasise that land use should be within the capability of the land to accommodate the use, the relationship of the proposed use to rural land use and the compatibility of the land use to surrounding land uses.  
23	We are persuaded by the Council that the proposed use is a use that, whilst not agricultural in itself, supports agricultural uses within the Shire (and beyond).  We are further persuaded that the use is located in an area that accommodates a range of uses as noted and does not remove productive farming land and avoids impacts to the environmental qualities of the subject site. 
24	In considering the proposed building being the increase to the existing shed on site, the GW4 zone design and siting issues/guidelines seek to minimise any adverse impacts of siting, design, height, bulk and colours and materials to be used on landscape features, minimise the location and design on the visual impact on the landscape and minimise adverse impacts on the character and appearance of the area.

Figure 3: Proposed image of shed included as part of the planning application.

Figure 4: Red outline of enlarged shed. Source: Planning officer delegate report.

25	The proposed building includes an extension to the existing shed.  It is our view that the proposed expanded shed will appear no different to what currently exists with the exception of the flue which is proposed at a height of 8 metres above the shed floor.  
26	Having regard to the design siting guidelines, we find that the proposed building works would not have a detrimental impact on the landscape features of the site or area.  Visually to Old Warburton Road, the front boundary is landscaped with primary views into the site being through the driveway access.  Visually to the adjoining residential property to the north, existing vegetation effectively screens any clear views into the site, noting that there are filtered views at some vantage points.  There is a gap within the boundary vegetation, but we are advised by the owner of the review site that supplementary planting has occurred to fill the gap and screen any views into the review site and expanded shed.  
27	We find that whilst the flue may be visible, the structure will appear as a shed not dissimilar to any shed found on surrounding properties.  We consider that filtered views into the site and proposed shed structure is appropriate and addresses the guidelines of the zoning provisions.  
28	In summary, having regard to the proposed use and the zone provisions, it is our view that the proposed horse crematorium would not detract from the use of land for agricultural purposes and given the location within a shed, it will not detract from the character of the non-urban landscape.  We see no reason under the provisions of the zone to refuse the proposed use and development.
Planning Policy Framework 
29	Council submitted that there are a number of relevant local policies including clauses 21.04 Agriculture, 21.06 Built Form and 21.07 Landscape.  Generally, these policies seek to protect the rural and green wedge landscapes and ensure that new development complements the established landscape character of the area.  It is policy further to prevent further fragmentation of rural and green wedge landholdings in non-urban areas and restrict commercial and non-agricultural activities. 
30	We agree with the submission of Council that the proposed use is appropriate having regard to the local policy framework for the following reasons:
•	It is a use that, whilst it is not in itself an agricultural land use, it is a use that provides a support to agricultural practices throughout the Shire.
•	The proposed use is attached to an existing shed structure within the existing residential curtilage of the property, avoiding expansion into the cleared paddock and vegetated areas of the review site.
•	The land use equates to 64.8 square metres portion of a 3.4 hectare property.  The remaining area of the site is available to be used for farming or agricultural uses.
31	We find no reason under the planning policy framework to refuse the proposed use and development.
Bushfire management
32	Clause 13.02-1S (Bushfire Planning) applies to all planning applications within a designated bushfire prone area and to uses which may create a bushfire hazard.  The objective of the clause reads:
To strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.
33	Clause 13.02-1S gives priority to the protection of human life.  As part of the strategies for bushfire hazard identification and assessment, it is a strategy to:
Considering and assessing the bushfire hazard on the basis of:
•	Landscape conditions - meaning conditions in the landscape within 20 kilometres (and potentially up to 75 kilometres) of a site;
•	Local conditions - meaning conditions in the area within approximately 1 kilometre of a site;
•	Neighbourhood conditions - meaning conditions in the area within 400 metres of a site; and 
•	The site for the development. 
34	As identified earlier, the Tribunal noted that the CFA submitted that there was insufficient consideration to matters of bushfire management and the Tribunal further made the observation that no assessment against clause 13.02-1S had been undertaken.  A permit is not required under clause 44.04 Bushfire Management Overlay (BMO), however the Tribunal considered that an assessment against the provisions of clause 13.02-1S was warranted.  Following the interim order, the respondent submitted further information including an updated bushfire management report and a bushfire emergency plan.  These documents provide management details of the proposed use and includes such conditions as the use would not operate on Fire Rating days of Sever, Extreme or Code Red and that a spark arrester be installed on the incinerator. 
35	The CFA submitted that the plan was sufficient subject to conditions to be included on the permit, which have been detailed in full earlier in this decision.  
36	We are persuaded by the CFA that subject to conditions, the proposed use and development satisfies the policy of clause 13.02-1S.  We are further satisfied that the respondent can comply with all conditions included on the permit.   
37	Whilst a permit was not required under the BMO, the use and development of the site required an assessment of the use as a potential source of a bushfire hazard and we are persuaded by the CFA that the proposed use manages the bushfire risk appropriately.  
38	We find no reason under the provisions of clause 13.02-1S to refuse the proposed use and development.
Amenity considerations
Noise
39	The objective of clause 13.05 1-S of the provisions is to assist the control of noise effects on sensitive land uses. The strategy is to:
•	Ensure that development is not prejudiced and community amenity is not reduced by noise emissions, using a range of building design, urban design and land use separation techniques as appropriate to the land use functions and character of the area.
40	The relevant policy document in the provision is the EPA’s State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade), No. N-1 (SEPP N-1) which determines the noise limits from Commerce, Industry and Trade generally in the metropolitan region of Melbourne; however, the proposed site is outside the metropolitan region.
41	Noise from commercial sites, such as the proposed crematorium, is regulated by the requirements of the EPA’s Noise from Industry in Regional Victoria (NIRV) guidelines. The guidelines provide a mechanism to establish the recommended maximum noise levels from Commerce, Industry and Trade in regional Victoria.
42	The NIRV guidelines recognize that there is a requirement to:
“…provide a balance between protecting community wellbeing and amenity near industrial premises and supporting the social and economic value of industry in regional Victoria.”
43	The NIRV guidelines set out recommended maximum noise levels which manage the noise impacts on the local communities from commercial activities. The recommended maximum noise levels (RMNL) are based on the local land-use zone. The guidelines are non-regulatory and only become enforceable when maximum noise level requirements are incorporated into a planning permit.
44	The acoustic report 660 Old Warburton Rd Wesburn, 8.6.21, prepared by Mr Davis of Waveform Acoustics for the applicant, considers the application of the NIRV guidelines, proposes noise objective criteria and predicts potential noise levels at residences near the proposed crematorium.
45	Waveform Acoustics were engaged by Mr Davis to provide acoustic advice on the impacts of the site activities. From the NIRV guidelines, Waveform Acoustics determined the following RMNL at residential buildings near the proposed crematorium; refer to Table 1.
Table 1: Recommended Maximum Noise Levels
Period	Day	Evening	Night	
Normal operations
RMNL, LAeq	46	41	36	
Backup generator, LAeq	56	46	41	

46	Waveform Acoustics used the noise emission data provided by the cremator manufacturer to determine the potential noise level at the nearby residential properties. At 650 Old Warburton Road, the nearest neighbouring residence and the home of Ms Bankes, the predicted noise levels are 38 dB(A). 
47	Waveform Acoustics proposed noise attenuation measures for the shed enclosing the cremator. The noise attenuation works include internal cladding of the walls and roof with the cavity between the external walls/roof and internal walls/roof filled with an insulation/noise absorbing material. With the noise attenuation measures applied to the new shed Waveform Acoustics predicts the noise levels from the crematorium shed at 650 Old Warburton Road to be < 25 dB(A). Figure 5 shows a noise contour map of the predicted noise levels.

Figure 5: Modelled noise levels from the proposed cremator.

48	Ms Bankes is concerned that the operation of the cremator will cause noise at her residence during the daytime and night-time. The loading and unloading of animals (horse) into the machine will be limited to these hours: 
i	Monday to Friday: 8:00am to 6:00pm. 
ii	Saturday, Sunday and Public Holidays: 9:00am to 5:00pm.
49	From the application by Mr Davis and Councils submission, the burn rate of the cremator is 50kg per hour; therefore, for a large animal of say 800kg the burning would take at least 16 hours. Depending upon size of the animal and when the animal is loaded into the cremator, the cremator would most likely be required to operate continuously into the evening period and potentially into the night-time period (after 10:00pm). Waveform Acoustics recommended that whilst the cremator is operating the building doors will need to be closed.
50	The issue of the occasional power outages in the area was raised by Ms Bankes. The applicant has indicated that a backup generator would be on site and would and integral part of the development of the facility. The EPA SEPP N-1 policy provides guidance for the control of noise from backup generators. During the operation of a backup generator the allowance for the potential increase in the RMNL is an increase of 10 dB(A) for the daytime period and an increase of 5 dB(A) for the evening and night-time periods.
51	We are of the opinion that the potential noise from the loading and unloading of animals and the operation of the cremator can be managed appropriately.
Air quality
52	The objective of clause 13.06 1-S of the provisions is to assist the protection and improvement of air quality. Whilst the provisions do not directly refer to the type of development that is proposed in this case, the clause does reference the clause does refer to the EPA document State Environment Protection Policy (Air Quality Management) (SEPP-AQM).
53	Mr Davis has made contact with the EPA; the EPA has provided advice (June 2021) that: 
The EPA is of the understanding that the proposal for the Animal Cremator at 660 Old Warburton Road, Wesburn is unlikely to be considered a schedule activity under category L01 General Emissions to Air.
54	Council sought advice from the EPA regarding the permitting of the crematorium in January 2020. The EPA advised Council that:
The EPA had no objections Council issuing a permit….subject to the following conditions:
•	Offensive odours must not be discharged beyond the boundaries of the premises.
55	A photo of the type of cremator to be installed at the applicants’ premises is shown in Figure 6 below. Mr Davis has provided details of the operation of the cremator and had air quality consultants Ektimo determine the ground level concentrations of the relevant SEPP-AQM air pollutant parameters. Ektimo concluded that the risk of the ground level concentrations exceeding the SEPP-AQM design criteria in areas surrounding the site is low.

Figure 6: Photo of a cremator of the type to be installed at the applicants premises.

56	The potential issues of smoke and odours from the crematorium facility is a concern for the objectors. Ms Bankes property is approximately 50 metres to the east of the crematorium and any odours or visible smoke from the crematorium would be potentially discernible at Ms Bankes residence. 
57	Whilst meeting the SEPP-AQM requirements would appear to be achievable and the EPA does not require air pollutant concentration permit conditions, we support the EPA requirement that the permit conditions include a requirement that offensive odours must not be detectable beyond the boundaries of Mr Davis’s property. Furthermore, we support Ms Bankes concern about the emission of smoke from the cremator stack; we will include a permit condition that the cremator must not emit visible emissions from the stack.
Waste management
58	Waste management from the operations of the horse recovery and cremation process were raised with the Tribunal. Ms Bankes had concerns about the discharges from the deceased horses when at the facility and the disposal of these discharges and the waste materials that were used to contain the discharges. Ms Bankes was also concerned about the cleaning out of the trailers that are used transport the deceased horses.
59	Mr Davis provided details to the hearing on how the discharges from the deceased horses were minimised and managed. Mr Davis indicated that the waste material from the covering of the deceased horses and the discharges into the trailers would be disposed of in the cremator.
60	We are satisfied that the applicant is aware of the concerns about the discharges from the deceased horses, however, we intend to include waste management conditions in the permit conditions. These conditions will include requirements for:
•	Cleaning of the interior of the trailers used for transporting the deceased animals will only be undertaken within the proposed shed,
•	The floor of the proposed shed will be sealed and sloped towards a catchment sump so as to catch the waste material and washdown fluids,
•	All waste materials from transporting the deceased animals and washdown fluids from the cleaning of trailers are to be incinerated.
Conclusion
61	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Tracey Bilston-McGillen
Presiding Member		Phil West
Member	

Appendix A – Permit Conditions

Permit Application No:	YR-2019/743	
Land:	660 Old Warburton Road, Wesburn	

What the permit allows	
In accordance with the endorsed plans:
•	Use and development of an animal (horse) crematorium.	

Conditions:
1	Prior to the commencement of the use and/or development, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with decision 'Aerial Photos and Existing Conditions' and 'Proposed Shed Extension Plan' plans received by Council on 22 December 2019 but modified to include: 
(a)	A schedule of construction materials, external finishes and colours. 
(b)	The cardinal direction incorrectly labelled as 'Approx. 45m To East Boundary' amended to read 'Approx. 45m To West Boundary'. 
(c)	Width of the driveway (4 metres) shown on the plans. 
(d)	The development plan must be submitted reflecting any changes required in the acoustic and bushfire management reports.
(e)	Noise attenuation measures to the building and any other changes as required by Condition 14 Acoustic Report. 
(f)	Any changes as required by Condition 16 Waste Management Plan (WMP).
(g)	Any changes as required by Condition 17 Bushfire Management Plan (BMP). 
All of the above must be to the satisfaction of the Responsible Authority. 
2	The building and works as shown on the endorsed plans, reports or other documents as included in this planning permit must be undertaken, constructed and maintained to the satisfaction of the Responsible Authority and must not be altered unless with the further written consent of the Responsible Authority.
3	The use hereby permitted must be undertaken in accordance with the permit and must not be modified or altered unless with the further written consent of the Responsible Authority.
4	The permit holder must provide flue stack test results of the cremator after it has been installed and commissioned to determine if the emissions meet policy limits. The permit holder must submit the results to the Responsible Authority within three (3) months of commencement of the use.
5	Before the use commences, all works specified in this planning permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all works are completed to enable the site to be inspected.
6	Unless with the prior written consent of the Responsible Authority, the loading and unloading of animal (horse) into the machine hereby permitted must operate only within the following hours unless the Responsible Authority gives consent in writing: 
i	Monday to Friday: 800am to 600pm. 
ii	Saturday, Sunday and Public Holidays: 900am to 5pm.
7	A maximum number of three (3) staff can operate on the premises at any one time unless with the further written consent of the Responsible Authority. 
8	One staff member must at all times be on site when the cremation machine is firing.
9	The cremator must only be used for horses, unless with the further written consent of the Responsible Authority. 
10	The cremator must only be used a total of 20 times each calendar month (Gregorian calendar), unless with the further written consent of the Responsible Authority.
11	At no time shall the permit holder amputate / dismember an animal (horse) for the purposes of cremation, unless with the further written consent of the Responsible Authority. 
12	At no time shall the permit holder store deceased animal/s (horse/s) on the premises, unless with the further written consent of the Responsible Authority.
13	At all times of use, the permit holder must keep a record of the following:
(a)	Maintenance schedule / servicing; 
(b)	The date and time of use including the 'start' and 'finish' times of the cremation;
(c)	The approximate weight of the animal (horse); 
(d)	The cause of death of the animal (horse), if known; and, 
(e)	If the remains were returned to the owner or disposed of at an EPA approved waste site. 
All of the above must be to the satisfaction and be made available of/to the Responsible Authority.
14	Concurrent with the endorsement of plans, a report prepared by a qualified Acoustic Engineer must be submitted generally consistent with the report prepared by Waveform acoustics dated 8.6.21 outlining specific noise attenuation measures to ensure that the use complies with the recommended maximum noise levels specified in the EPA guidelines for Noise from Industrial in regional Victoria, publication 1411, October 2011 (NIRV) to the satisfaction of the Responsible Authority.  Construction and maintenance of the building must be in accordance with the recommendations contained in this report to the satisfaction of the Responsible Authority.
15	The noise limits for noise from the operation of the crematorium will be limited to:
Table 1: Maximum Noise Levels
Period	Day	Evening	Night	
Normal operations
RMNL, LAeq	46	41	36	
Backup generator operating, LAeq	56	46	41	

16	A waste management plan must be prepared addressing the following matters:
(a)	The washing of vehicles including the trailer associated with the permitted use to occur within the shed and how this is managed.  
(b)	Cleaning of the interior of the trailers used for transporting the deceased animals will only be undertaken within the proposed shed,
(c)	The floor of the proposed shed will be sealed and sloped towards a catchment sump so as to catch the waste material and washdown fluids,
(d)	All waste materials from transporting the deceased animals and washdown fluids from the cleaning of trailers are to be incinerated.
The plan must be submitted to the satisfaction of the Responsible Authority.
Bushfire conditions
17	Before the development is occupied or the use commences, a bushfire emergency plan (BEP) to the satisfaction of the Responsible Authority and CFA must be submitted to and endorsed by the Responsible Authority.  The BEP must clearly describe the proposed emergency management arrangements and should update and address the following matters:
(a)		Premises details
i	Describe property (including title details) and business details.
ii	Identify the purpose of the BEP stating that the plan outlines procedures for:
•	Closure of premises on any day with a Fire Danger Rating of Severe, Extreme or Code Red.
•	Evacuation (evacuation from the site to a designated safer off-site location).
•	Shelter-in-place (remaining on-site in a designated building).
(b)		Review of the BEP
o	Outline that the plan must be reviewed and updated annually prior to the commencement of the declared Fire Danger Period.
o	Include a Version Control Table.
(c)		Roles & Responsibilities
o	Detail the staff responsibilities for implementing the emergency procedures in the event of a bushfire.  
(d)		Emergency contact details
o	Outline organization/position/contact details for emergency services personnel
(e)		Bushfire monitoring procedures
o	Details the use of radio, internet and social networks that will assist in monitoring potential threats during the bushfire danger period.
o	Describe and show (include a map) the area to be monitored for potential bushfire activity.
(f)		Action Statements – trigger points for action
i		Prior to the Fire Danger Period
•	Describe on-site training sessions and fire equipment checks.
•	Identify maintenance of bushfire protection measures such as vegetation management (including implementation of protection measures required by any endorsed Bushfire Management Plan).
ii	Closure of premise during forecast Fire Danger Rating of Severe, Extreme or Code Red days 
iii		Outline staff notification procedures and details of premises closure (including timing of closure).
iv	Evacuation 
•	Identify triggers for evacuation from site.  For example, when evacuation is recommended by emergency services.
•	Details of the location/s of the offsite emergency assembly location.
•	Transport arrangements for staff including details such as: 
•	Number of vehicles required 
•	Name of company providing transportation
•	Contact phone number for transport company
•	Time required before transportation is likely to be available
•	Estimated travelling time to destination
•	Actions after the bushfire emergency event.
v	Shelter-in-place 
•	Show the location and describe the type of shelter-in-place.
•	Triggers for commencing the shelter-in-place option.
•	Procedures for emergency assembly in the shelter-in-place building.
Premises closure
18	The use of the cremator approved under this permit must not operate after 10.00am on any day with a declared Fire Danger Rating of Severe, Extreme or Code Red.
Bushfire Management Plan
19	The Bushfire Management Plan prepared by Fire Front Consultancies, Version 2, dated5/6/2021, must be amended as follows:
o	Accurate title details, including nominating distances from adjoining properties.
o	Vegetation management for defendable space with regard to 5 metre separation of tree canopies to exclude trees 3 to 6.
o	The Construction standard of the extension to also refer to provision and maintenance of spark arrester on incinerator stack.
o	A six (6) metre area around the LP Gas vessel/tank be free of all combustible materials, including vegetation, as per AS 1596: The storage and handling of LP Gas – Section 6.2.5(e): On-site storages of other dangerous goods and flammable and combustible materials.
The amended bushfire management plan be endorsed to form part of the permit and must not be altered unless otherwise agreed in writing by the CFA and the Responsible Authority.
Building and works
20	The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.
General conditions
21	Prior to the commencement of the permitted use, piped drainage must be constructed to drain all impervious areas incorporating Water Sensitive Urban Design features, to the satisfaction of the Responsible Authority.
22	The management of Stormwater is to be in accordance with the Approved Point of Stormwater Discharge. Please apply for Approved Point of Stormwater Discharge through Council's webpage. 
https://www.yarrarangesvic.gov.au/Property/Roads-drains-footpaths/Stormwaterdrainage
23	Prior to the commencement of the permitted use, sealing of the eastern vehicle crossover must be constructed to serve the development to the satisfaction of the Responsible Authority. 
24	The parking areas, vehicular access ways and drainage approved by this permit are to be maintained and must not be obstructed or made inaccessible to the satisfaction of the Responsible Authority. 
25	The loading and unloading of vehicles and the delivery of goods must be carried out at all times within the site boundaries. 
26	All vehicles must enter and exit the site in a forward direction.
27	If any proposed buildings or works encroach over any part of the existing waste disposal system approval to relocate the system must be obtained from the Yarra Ranges Council Health Department. 
28	The applicant is able to connect all new wastewater producing fixtures associated with the application to the existing wastewater treatment system.
Amenity 
29	The use and development must be managed so that the amenity of the area is not detrimentally affected through the:
(a)	Transport of materials, goods or commodities to or from the land; 
(b)	Appearance of any building, works or materials; 
(c)	Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and, 
(d)	Presence of vermin All of the above must be to the satisfaction of the Responsible Authority.
All of the above must be to the satisfaction of the Responsible Authority.
EPA conditions
30	There must be no emissions of noise and/or vibrations from the premises which are detrimental to either of the following: 
(a)	The environment in the area around the premises; and, 
(b)	The wellbeing of person and/or their property in the area around the premises
31	Offensive odours must not be discharged beyond the boundaries of the premises.
32	No visible emissions from the stack of the facility, except during extenuating circumstances.
33	The permit holder must ensure that litter originating from the premises is not present beyond the boundaries of the premises.
Permit expiry
34	This permit will expire if one of the following circumstances applies: 
(a)	The development and use is/ are not started within two (2) years of the date of this permit. 
(b)	The development is not completed within four (4) years of the date of this permit. 
(c)	The use is discontinued for a period of two (2) years or more. 
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

- End of conditions -