VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11513/2021
Permit Application no. PLN20/0405	
CATCHWORDS	
Review of a failure to make a decision within the prescribed time. Section 79 Planning and Environment Act 1987.  Greater Dandenong Planning Scheme.  Green Wedge Zone.  Land used for flower farm and grazing.  Proposal to import fill.  Land subject to waterlogging and ‘pluvial’ flooding.  Whether permit application is piecemeal.  Whether filling would legitimately support agriculture.  Whether drainage outcomes acceptable.  	

Applicant	Earth Solutions Group Pty Ltd	

Responsible Authority	Greater Dandenong City Council	
Referral Authority	Melbourne Water	
Submitter	Viva Energy Australia Pty Ltd	
SUBJECT LAND	576 Frankston-Dandenong Road
BANGHOLME  VIC  3175	
HEARING TYPE	Hearing	
DATE OF HEARING	28 and 29 March 2022	
DATE OF ORDER	10 June 2022	
CITATION	Earth Solutions Group Pty Ltd v Greater Dandenong CC [2022] VCAT 640	

Order

1	In application P11513/2021 the decision of the Responsible Authority is set aside.
2	In planning permit application PLN20/0405 a permit is granted and directed to be issued for the land at 576 Frankston-Dandenong Road Bangholme in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Earthworks 

Ian Potts
Senior Member	

Appearances
For Earth Solutions Group Pty Ltd	Tania Cincotta, solicitor from Best Hooper.  She called Rob Swan, civil engineer from HACP to give expert evidence about drainage and flooding.
Tania Cincotta solicitor from Best Hooper, by written submissions dated 11 April 2022.  
	
For Greater Dandenong City Council	Maria Marshall, solicitor from Maddocks Lawyers.
	
For Melbourne Water	No appearance
	
For Viva Energy Australia Pty Ltd	Ms Kayla Gregg, solicitor, Davis Advisory on 28 March 2022.
Rupert Watters, of counsel, by written submissions dated 5 April 2022.	

Information
Description of proposal	Filling by placement of clean fill (soil) across three areas of the subject land is proposed.  The method of filling requires stripping of topsoil, controlled placement and compaction of fill and replacement of topsoil.  	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Greater Dandenong Planning Scheme.	
Zone and overlays	Green Wedge Zone – clause 35.04 and schedule 1.
Environmental Significance Overlay – clause 42.01 and schedule 3 (eastern Treatment Plant Buffer Area).  
Vegetation Protection Overlay – clause 42.02 and schedule 1 (Native Vegetation in the Main Portion of the Green Wedge).  	
Permit requirements	Construct or carry out earthworks which changes the rate of flow or discharge point of water across a property boundary – clause 35.04-5 and schedule 1.
Construct or carry out works (bulk earthworks) – clause 42.01-2.	
Relevant scheme policies and provisions	Clauses 11.01-1R, 12.01-2S, 13.03-1S, 21.02, 21.03, 21.04, 21.06 and 22.02 of the Planning policy framework.  
Clauses 51.02, 52.12 and 52.17.  
Clauses 65 and 71.02.      	
Land description	The subject land of 28.3 hectares has an irregular shape with an eastern boundary frontage to Frankston-Dandenong Road of 275.40 metres, a northern boundary of 1,154.9 metres, a south boundary of 902.6 metres and a rear (west) boundary of 373.43 metres.
Two easements of 16.94 metres and 15.25 metres width (for power lines and a pipeline respectively) run along the western boundary.
The land falls approximately 1.5 metres to 2 metres from east to west.  
The eastern end of the subject land contains two rows of polyhouses used for flower growing, a dam and associated buildings.  The western portion of the land are paddocks used for grazing.  A small central portion of the land is leased to a transfer station operator.  
Land to the immediate north, south and west is open paddocks zoned as Green Wedge.  Further to the north is a mobile home village.  To the east is commercial and industrial land and an Urban Floodway Zone.    
A road reserve along the western boundary acts as a drainage line which feeds to drainage that passes through the Melbourne Water Treatment Plant.  	

Reasons
Introduction and summary
1	Earth Solutions Group Pty Ltd (ESG) seeks planning permission for earthworks on the land at 576 Frankston-Dandenong Road, Bangholme (subject land).  It made an application to Greater Dandenong City Council (council) for a planning permit in September 2020.  However the council did not made a decision within the prescribed time and ESG seeks a review of its application by the Tribunal.  The Tribunal must now decide whether a planning permit should be granted.
2	The earthworks proposed by ESG comprise of:
•	stripping and stockpiling topsoil;
•	importing, levelling and compacting soil fill across much of the subject land; and
•	replacing the topsoil. 
3	The intended outcome is to raise the subject land’s elevation and improve its drainage so that the present flower growing activities undertaken on the site can be expanded.  
4	The Green Wedge Zone (GWZ), schedule 3 of the Environmental Significance Overlay (ESO3) and schedule 1 of the Vegetation Protection Overlay (VPO1) of the Greater Dandenong planning scheme (planning scheme) apply to the subject land.  The proposed earthworks are said to require planning permission under the GWZ because of changes to the rate of flow of water or discharge point to water across the subject land’s boundary.  Permission is required for works, here said to be ‘bulk earthworks’, under ESO3.  Strictly, the earthworks meet the definition of works because of the change to the existing topography of the land and not because it represents bulk earthworks. 
5	The plans before the Tribunal protect two native trees while the loss of trees along the property boundaries benefit from an exemption from any planning permissions under clause 52.12.-2.  Accordingly, no planning permission under VPO1 is required for the removal of vegetation proposed under this application.  Permission under the EOS3 is not required for loss of non-native vegetation and a similar exemption applies to any native vegetation along the fence line.  Consequently, the loss of vegetation was not a ground pursued by the council.  Given the exemptions or exclusions under these controls I have proceeded on the basis that the removal or loss of vegetation is not controversial or an action that requires planning permissions.  
6	The council asserts that the proposal should not be permitted.  The grounds for this position arise from concerns about unacceptable drainage impacts, the filling not aligning with the objectives and strategies for Green Wedge land or the purposes of the ESO3.  The council also submits that the application is piecemeal because additional planning permission will be required for activities arising from the further use or development of the land once filled.  It is therefore said that granting a permit would not be an orderly planning outcome, as sought under clause 65.01 of the planning scheme.  
7	ESG rejects these grounds.  Relying on the amended plans and the drainage evidence of Mr Swan, ESG asserts that the proposal is not piecemeal, presents an orderly planning outcome and will result in outcomes that are at least neutral if not supportive of the purposes of the GWZ, ESO3 and other relevant elements of the planning scheme.  
The substantive issues
8	Having considered the grounds of the council’s opposition to this proposal and the relevant planning control, I consider the determinative issues in this proceeding are about whether:
•	the permit application is piecemeal; 
•	the proposal would support the agricultural use of the land, as relied on by ESG or is otherwise acceptable; and
•	drainage and risks to surface water quality are (or can be) acceptably managed.
9	While one council ground is that the proposal does not meet with purposes of the ESO3, I am unsure as to why this might be thought to be so.  The purpose of the ESO3 is to establish a buffer around the Eastern Treatment Plant (ETP) to manage possible incursions by sensitive uses into surrounding land and therefore limit the ETP’s operations by way of reverse amenity impacts.  At no time does this proposal seek to change the land use from its present-day agricultural operations; operations which do not require planning permission under this overlay.  Exemptions from permission for works and development under ESO3 also include but are not limited to ploughing, construction of dams or other agricultural outbuildings or works.  A possible nexus with ESO3 could be the council’s apprehension about additional polyhouses being built on the site.  As I conclude below, such a proposal is not before me nor need be apprehended under this application.  
10	I conclude therefor that while permission is required for ‘works’ under the ESO3, the purpose of this overlay will not be offended by these proposed earthworks.  I will therefore not address this control further and focus on the determinative issues set out above.  
Is the permit application piecemeal or otherwise incomplete?
11	Council submits that in its present form, the proponent (and its proposal) has failed to provide all the appropriate information about the end use of the earthworks.  It says the permit application is therefore piecemeal in its nature, with further planning permissions being required to achieve the stated agricultural benefits relied on the by ESG.  It asserts that on this basis a decision to allow the earthworks without considering these additional agricultural works or activities is inconsistent with clause 65.01 which seeks orderly planning outcomes.  
12	The Council refers to the following references to future land use within the planning application material to support its position about the application being piecemeal:
a.	The proposed works will assist with the ongoing agricultural use of the land and its drainage.
b.	Additional buildings or polyhouses to support agricultural use will be a matter for future proposals and evaluation by the council if and when a permit is required.
c.	The earthworks are referred to in the agronomical assessment and advice as being necessary to improve site conditions for the expansion of the flower growing operations.  The expansion of the operations may occur through the construction of additional polyhouses and /or the forming of raised soil beds.
d.	Improved drainage supports the expansion of polyhouses or the formation of raised beds across the subject land.
13	For the following reasons I do not agree with the council’s apprehensions that this is a piecemeal application.  
14	First the council misapprehends the term ‘raised beds’ as if it is some form of formal earthworks or construction that may require planning permission.  As I discuss below in more detail, the forming and use of raised beds is a commonly used technique in horticulture to improve land productivity.  The forming of raised beds is no different to other cropping techniques, be they minimum tillage, harrowing, disc ploughing etc, that are used to form a bed for the growing of plants.  When viewed in this light, the raising of the land to accommodate raised bed techniques is a natural and unsurprising consequence of the proposed filling.  It is not of the same nature or context of a piecemeal application which was before the court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (Pioneer Concrete).  
15	I am also not persuaded that the apprehensions about future development of polyhouses is similarly a reason to reject this application as piecemeal.  Along with Pioneer Concrete, the council refers to various decisions from other divisions of the Tribunal about the notion of piecemeal applications and the need for orderly planning outcomes, namely Trowbridge & Ors v Noosa Shire Council & Ors, Rowcliffe Pty Ltd v Stonnington CC and Whitmore v Yarra Ranges SC, to support the propositions that piecemeal applications:
a.	Can be identified as those that are not fully self contained.
b.	Make future planning decisions more difficult and unfairly fettered because the decision about the application may be seen to tacitly approve of the follow up application.
c.	Could otherwise constrain or pre-empt future permit applications.
16	For the sake of convenience and accepting that these propositions are acceptable summaries of these cases, I do not find that they assist or support the council’s apprehensions about this proposal.  
17	It is clear to me that the end use of the proposed landfilling is to support the ongoing agricultural use of the land.  But for changes in the elevation of the land, and improvements to drainage (a matter I address later) nothing else about the use of this land is to change or importantly, is proposed.  
18	The clearly stated objective is to improve grounds conditions and drainage to support ongoing agricultural use of the land.  Forming raised beds would be a practice that reflects normal horticultural soil forming practices and not a form of earthworks that falls within the definition of that term under the planning scheme (see clause 73.01).  
19	I accept that polyhouses are a structure and arguably there may be circumstances where planning permission might be required for such a structure or structures on the subject land.  However a decision about these earthworks would not constrain or confine any future decision, if one were required, about such polyhouses.  For example, the evidence of Mr Swan is that there is no change to the hydrological conditions of the subject land in terms of impervious surfaces and therefore changes in runoff generation under this proposal.  It’s his evidence that a proposal for polyhouses would need to deal with such a change in impervious surfaces.  Therefore, I am not being called upon to make any decision on the change or capacity of the site to contain additional runoff from such sources.  It remains an open question to be decided if or when polyhouses might be proposed.  
20	Further, there is a distinguishing difference between the circumstances in Pioneer Concrete and other cases referred to about the piecemeal applications.  That is that while the earthworks being proposed might well support the future development of the subject land with polyhouses, the fact is that the works support the ongoing, unstructured agricultural uses, such as the present day grazing or outdoor growing of flowers.  The fact that the latter may require raised beds also does not make this application piecemeal.  The use of raised beds and the other agricultural activities based on the raised ground levels do not require further planning permission.  
21	Given the above, the decision to be made in this proceeding is therefore acceptably confined to the nature and outcomes of the earthworks being proposed.  This decision and its ambit in relation to drainage and other matters does not fetter or confine any future decisions, if they are ever required, in the manner apprehended by the council or set out under authorities of the court about piecemeal applications.  A future proposal for polyhouses would be a stand-alone matter where drainage from such structures, and any other related planning matters, e.g. landscape amenity, could be fully ventilated and considered independent of the decision before me. 
22	It follows from the above that I conclude that this proposal is not a piecemeal application.  
Will the proposal support agricultural use of the land?
23	The extent of filling is conveniently demonstrated in Figure 1 below, which is extracted from the council’s written submission.
24	ESG submits that under present conditions, more than half of the subject land is not suitable for flower growing and of limited grazing capacity.  The conditions referred to limiting this agricultural capacity are poor drainage and waterlogging.  The purpose of the earthworks is to improve the productivity of this land by improving the drainage and improving the water and nutrient holding capacity of the soil.  
25	For the following reasons I accept these submissions. 
26	It is clear from the material before me that in its present condition what this land suffers from is not flooding in the sense of overland flows from the breakout of stream flows or overland runoff from adjoining land.  Mr Swan’s assessment is that:
… there does not appear to be a mechanism for the generation of widespread overland flooding through the site, and the site does not intersect a major flow path.
What it suffers from is waterlogging and poor internal drainage.  
Mr Swan describes this in his evidence as the subject land behaving like low lying rural land that has soil and topographical conditions that lead to water logging and impeded drainage.  This means that eventually when the upper soil horizons become saturated (due to low permeability of the deeper soil horizons), water pools on the surface and eventually flows overland.  Present drains and the natural fall of the land direct such flows toward the north-west corner of the land where it discharges to a formalised drainage network and ultimately discharges to the Paterson River.  

Plate 1: Summary of proposed filling 
27	The natural soil profile conditions identified in the agronomy assessments and procedures are consistent with land that is susceptible to water logging.  
28	The benefits of the proposal are therefore two-fold.  The first is that in raising the overall land elevation, there is a physical increase in the capacity of the subject land to store rainfall and when or if it becomes saturated, runoff flows will be improved by the formalised drainage across the site.  I will address the implications of this outcome for drainage later in these reasons, but in agricultural terms, this means that the upper soil profile can be freed from its seasonal waterlogged conditions and so, structurally, support horticultural or the currently limited grazing activity.  
29	The second benefit is that in elevating the soil and improving its drainage it can be worked to form raised beds for the growing of flowers.  The concept of raised beds whether permanent or seasonal is a commonly used agricultural soil management technique for improving the drainage of soils and maintaining low tillage forms of intensive cropping or horticulture.  It is commonly understood with agricultural science that raised beds enable root growth above saturated soil layer(s), provides increased storage for nutrients and retained moisture (in unsaturated conditions).  These are conditions that improve agricultural productivity.  These benefits are well recognised in agricultural land management and their reference in the agronomy assessment is unsurprising.  
30	The council questions how an improved soil profile can be achieved when the source and composition of the imported fill is not known.  It is true, but unsurprising that the sources of the imported fill are not fully detailed.  As understood, the source of imported fill will be opportunistic, i.e. it will be dependent on developments where there is an excess of soil requiring disposal.  The substantive issue is not the source of the material but rather whether the material will be fit for purpose and support the proposal’s stated objective for improved agricultural outcomes.
31	The agronomy reports and soil profile re-establishment procedures proposed to be followed seek to replicate the soil profile’s textural conditions, i.e. layering the placed fill to replicate loamy-sandy-clay subsoils and topsoils of sandy loam.  That such procedures are put forward and are to be followed (by way of endorsement and compliance requirements under the permit conditions) distinguishes this proposal from the mere disposal of excess spoil from development sites, which underlies the apprehensions held by the Council.  If the proposal were to merely place any soil over existing topsoil, I would be inclined to seriously doubt the asserted improvements to agricultural activity relied in this proposal. 
32	In respect to concerns about the quality of the imported fill, existing controls within the framework of the Environmental Protection Act 2017 and associated regulations for the sourcing, transport and storing / treatment of waste means that legally only clean fill can (or should) be delivered to the subject land.  Further regulation of the imported fill and its placement will be achieved through the application (and enforcement if necessary) of permit conditions.  I am satisfied that this is sufficient to provide confidence that the quality of the imported fill will be controlled to the appropriate degree.  
33	I would also observe that it is not expected that soil material and profiles will exactly mimic those of the native conditions.  There will of course be variations due to soils sourced from different areas.  Nevertheless, the texture (i.e. granular composition) of the source soil, and its placement in the soil profile are intended to reflect those of present conditions under the soil import and placement procedures. Adherence to these procedures will be required under the permit conditions.  The stripping and replacement of native topsoil over a new soil profile reflects well understood rehabilitation methods used in earth extraction and mining industries.  In this respect, this proposal presents nothing unusual in its approach and there is no evidence to the contrary that agricultural activity on the site will not benefit from this approach and the improved drainage of the land.  
34	It follows that the positive agricultural outcomes of this proposal align with and are supportive of the purposes of the GWZ to support agricultural use of the land.
Will the proposal appropriately manage drainage and water quality?
35	The council says that notwithstanding the inclusion of a drainage strategy in the application, it is uncertain whether the proposal will adequately manage the flow of surface water during overland flooding events.  Council’s concerns include the impacts from any end use including polyhouses.  It says that the proposal would not be consistent with the objectives and strategies for flood plain management under clause 13.03-1S.  
36	The application is accompanied by a drainage strategy.  Mr Swan was called by the applicant to review and give evidence about this drainage strategy.  Key elements of Mr Swan’s evidence are that:
•	He confirms the strategy’s identification of the fact that the subject land is not subject to overland flooding from upstream catchments.  This is in part due to the fact that the subject and surrounding land principally drains westward toward a drainage easement.  An internal drain along the subject land’s southern boundary also intercepts any peripheral boundary flows and directs them to the point of drainage discharge.  Internal drainage of the subject land and this proposal therefore needs to deal only with onsite runoff and overland flows.  
•	A drainage system runs along the road easement that forms the western boundary of the subject land.  The overland flow along this drainage line would not be affected by the earthworks proposed on the subject land.  
•	Runoff generated from within the site would be directed through a series of drains to a storage dam.  The volume of water to be stored or discharged from the dam during storm events would be no greater than current conditions or rates of flow given that there will be no increase in hard stand or impermeable surfaces under this development.  Although he acknowledges that more water will be directed to the dam, because of the new drains and forming of the land, the overall discharge would not increase. He stated in the hearing that if the dam’s volume were to be increased, it would detain more water for re-use.  
•	Future stormwater discharge will be directed to the present point of discharge at the north-west corner of the lot using earthen drains designed to contain 1% AEP flows, which is greater than normally required for rural land (typically being 10% AEP).  
•	Directing all internal stormwater flow to the dam will control sediment in the runoff, as the dam will form a sediment trap.  Given the filled land will be used for grazing of pastures (as currently occurs) or flower growing, runoff quality will be of a similar nature to present land uses.  Drainage along internal, grassed drains will also assist in filtering flows.  
37	Given the points summarised above and for the following additional reasons, I find that Mr Swan’s evidence confirms that the drainage strategy is acceptable.  
38	Principally Mr Swan’s evidence has identified that the earthworks would not affect the drainage behaviour of the wider catchment that flows along the drainage easement to the west of the subject land or overland flow that may occur on or along the western boundary.  Second, it is logical that as there would be no increase in impermeable surfaces created by the works, the volumes of runoff that would be generated will reflect the present conditions of the land.  This follows from the fact that a key factor that influences runoff generation is the nature of the ground’s surface (i.e. its permeability, surface roughness and slope).  This will not change under this proposal.  However, as the reason to fill and reshape the land is to improve drainage, I would expect drainage runoff rates to improve, therefore there may be some changes in terms of time to concentration of peak of flows.  This is allowed for by directing the overland flow to the dam, which will act like a detention basin. Thus the rate of final discharge from the subject land can be controlled by the dam and reflect present conditions.  
39	It follows that the drainage of the filled land can be managed so there will be no material changes in drainage volumes, flow rates or point of discharge from the subject land.  Such a conclusion raises the point that as there is no change in the flow of runoff over the boundary, there is no permit trigger for the earthworks.  However, out of an abundance of caution and given such a permit trigger is prospective, in that this is not known until the application details are provided, it is the better course to approach the application as one that requires permission.  
40	Further I am satisfied that the discharge from the site is to a defined waterway drainage system.  While the council has disputed whether the road reserve is such a system, Mr Swan’s evidence includes a map from the State Governments mapping system that clearly marks drainage along the reserve as a known waterway.  The map shows the drains along this easement turn westward, combine into one drain and then runs through the ETP and discharges to the Paterson River. 
41	Based on this existing system and his assessment of its capacity it is his evidence that there is no need to provide or formalise drainage to the Eumemmerring Creek said to be required by the council or supplement the road reserve drainage along the subject land’s boundary as proposed in the strategy.  
42	Given these conditions and the evidence of a formally recognised drainage system along this reserve, I see no reason to require the further drainage proposed by the council.
43	For these reasons I am satisfied that drainage has been appropriately and acceptably addressed.    
matters raised by Viva Energy 
44	Leave was given to Viva Energy Australia Pty Ltd (Viva) to make a written submission though I declined to join this respondent as a party to this proceeding.  
45	In its submission, Viva outlines that it is the licensee and operator of the Westernport-Altona-Geelong pipeline (WAG pipeline) that lies within the pipeline easement on the western boundary of the subject land.  Viva submission outlines the importance of the WAG pipeline and how its interest in this proceeding is to ensure that the proposed works do not adversely impact on this pipeline.  The potential for adverse impacts largely arises from Viva identifying that the Stormwater Management Strategy includes a proposal for a new drain along the western boundary of the site and potentially within or close to the WAG pipeline easement.  Viva also expresses concerns about the wider land filling and land forming works in proximity to the WAG pipeline.  It believes there is a material risk from these works, notably pad 1, including indirectly by the parking or movement of vehicles over the easement.  
46	Viva acknowledges that there are ‘no specific planning controls applicable to the subject land which require consideration of the impact on the WAG Pipeline’.  It maintains that safety and consequential economic, social and environmental outcomes from damage to the WAG pipeline are however relevant to planning.  It is Viva’s view that managing these risks is therefore relevant to planning.  It says that in this proceeding, no evidence or assessment was put forward to satisfy the Tribunal that the risks would be acceptably low.  Viva also expresses a view that the onus is on the proponent seeking planning approval to take responsibility to ‘be clear about what exactly is proposed and to ensure that any works are carried out in a way that does not adversely affect other people’s property’.  
47	Viva goes on to acknowledge that the risks are likely to be transient, and that appropriate construction measures may control the risk, or that controls may not be necessary.  It maintains however that with a lack of engagement by ESG on this issue, it and the Tribunal have no way of knowing if this is the case.  Viva therefore seeks conditions on the permit it says are necessary to assess and put in place appropriate measures to manage the risks.  The conditions, as contained in Viva’s statement of grounds, would require the applicant to, inter alia:
•	Seek advice from Dial Before You Dig before commencing the works.
•	Undertake at the applicant’s expense a Safety Management Study to meet the requirements of the Pipelines Act 2005 (Pipelines Act), the Pipelines Regulations 2017 (Pipelines Regs) and Australian Standard 2885.6: Pipeline - Gas and Liquid Petroleum (2018) (AS2885.6).
•	Meet all of Viva’s costs in entering into an agreement or doing anything required under the SMS or required by recommendations from an As Low as Reasonably Practical (ALARP) workshop/assessment.
48	The completion of an agreement and SMS process would, under Viva’s proposed conditions need to be to the satisfaction of the responsible authority.  
49	The council has not submitted a response to these matters.
50	A summary of ESG’s response is that:
•	The WAG pipeline is adequately protected by:
o	The registered covenants on title which prevent excavation, disturbance or planting of trees within the 15.25 metre wide easement where the WAG pipeline is located.
o	At no time has Viva or its predecessor licensees sought to vary or create any additional covenants or easements to protect its assets on the subject land, noting that under the present covenants, the easement and the whole of the subject land can be used for agriculture, including grazing of livestock and the passage of tractors.   
•	It is an offence under section 117 of the Pipelines Act to interfere with any works related to the operation of a pipeline.
•	Unless limited to a depth of not more than 300mm, it is an offence under section118 of the Pipelines Act to excavate or bore or open ground within 3 metres of a pipeline without authorisation.  
•	Section 120 of the Pipelines Act restricts a person from constructing a building within 3 metres of a point measured from the surface vertically above a pipeline.  
•	The title restriction and legislative provisions provide adequate protection of the pipeline and:
…identify the area of the land and distance intended to be covered from the pipeline to ensure the pipeline is not adversely impacted or interfered with.
•	The legislative requirements of the Pipelines Act (and associated legislative provisions) require Viva to prepare a safety management plan to minimise or eliminate the risks.    
•	In other proceedings where this issue has been raised, different divisions of the Tribunal have concluded that the management of risks is dealt with through the requirements of the Pipelines Act and not through the planning regime.  
•	To the extent that it might be said a residual risk may arise between the proposal and the pipeline following a SMS and ALARP process undertaken by Viva, Viva has not:
o	produced any material about how it has addressed matters of public safety to ALARP as it is required to under the Pipeline Act; or
o	produced any material that supports its position that the works would give rise to any adverse impacts on the WAG pipeline.
•	Under the plans now before the Tribunal and relevant planning permission being sought:
o	No change of land use is proposed.
o	No works are proposed on or close to the encumbered land, with the nearest works being setback from 12.2 metres to 24.5 metres from the easement boundary (and therefore even further from the pipeline).
o	No works are proposed within 3 metres of the WAG pipeline, being the trigger to seek authorisation under the Pipeline Act.  
o	In respect to the western boundary drain referred to by Viva in the Stormwater Strategy, ESG relies on the evidence of Mr Swan that this drain is not required and does not pursue or rely on its construction in this application.  
51	Given these points, ESG says it is not appropriate or reasonable for it to produce any further information.  Rather it says given the above circumstances the onus lies with Viva to demonstrate there is an unacceptable risk.
52	For similar reasons ESG resists the permit conditions put forward by Viva, noting that proposed permit conditions would manage the works and access over the pipeline easement.  
53	What now follows is my analysis of the above positions.
54	An analysis of the WAG pipeline’s importance or the need to manage risks to this infrastructure is unnecessary in this proceeding.  There is no dispute about its importance as infrastructure of state significance or the need to manage risks to it.  The substantive question is whether this proposal presents risks that are to be managed through the planning framework and consequently this permit application process.  
55	As has been noted in the ESG submissions, various divisions of the Tribunal have identified that the operation of licensed pipelines, their protection, and the safety of the community around it are managed through the Pipelines Act with little to no engagement through planning schemes or permit application processes.  Exceptions to this general position occur however where specific planning measures, such as an overlay control, are in place.  No such overlay or other nexus are found in this planning scheme. 
56	I agree with ESG that the permit triggers under the scheme do not engage the risks or interests of Viva.  The permission required under the ESO3 relates to the Eastern Treatment Plant.  The permit trigger under the GWZ arises from earthworks that affect (or might affect) overland stormwater flows over a boundary.  Accordingly, when casting of the net of these controls is made over the wider planning scheme, to ascertain what is relevant or appropriate to consider for these permissions, i.e. the relevant policies and decision guidelines including those of clause 65.01, risks arising from the presence of the pipeline are not engaged.  
57	Though neither Viva nor ESG referred to it in their written submissions, clause 19.01-3S of the planning scheme deals with pipeline infrastructure.  The relevant policy objective of this clause would be to ensure that the oil transmitted through the WAG Pipeline is safely delivered at minimal risk to people, other critical infrastructure and the environment.  Four strategies are presented in this policy, with only one having application here, i.e. to ‘provide for environmental management during….on-going operation of pipeline easements’.  In so far as this policy might have relevance in this application, the ongoing management of the WAG Pipeline easement is provided for by the covenants on title, as I discuss below, as well as the ongoing obligations for control of works near pipelines under the Pipeline Act.  
58	Thus whether by this policy route or by the lack of engagement under the relevant planning permissions being sought, in this proceeding it is the controls under the Pipeline Act and the covenant that protect the interests of Viva as the licensed operator of the WAG pipeline.  
59	In respect to the operation of the Pipelines Act I accept the points made by ESG that it is Viva that bears the responsibility for commissioning any SMS and ALARP workshop/assessments.  This aligns with the framework established under the Pipelines Act, Pipelines Regulations, and processes under AS2885.6.  Further as submitted by ESG, there is no change to the land use or works being proposed within the 3 metre ‘buffer’ either side of a pipeline which would be a trigger under the Pipeline Act.  Indeed, the buffer between the works, or any activity associated with the works, and the easement boundary is some 3 to 8 times the 3 metres distance provided for under the Pipelines Act.  
60	In respect to the covenants, it is clear from the language and requirements of these instruments, they were prepared to protect the WAG Pipeline and the interest of the pipeline licensee.  As submitted by ESG, nothing put by Viva would indicate that these covenants are inadequate.  Nor has Viva said the works would be in breach of the covenant.  As has been submitted by ESG, the actual earth filling works are not proposed within the easement nor on land within a buffer that varies from 12 metres to 24 metres of the easement boundary.  The proposal for a new drain in the stormwater strategy along the western boundary is not required and has been withdrawn from the proposed works.  No works or activities are therefore proposed within the easement 
61	In so far as it is relevant to my decision to grant a permit that would not be in breach of the terms of the covenants,I am satisfied that this is the situation.  
62	Viva submits that the Tribunal is in no position to assess or determine the risks.  I agree that there is nothing before me in the form of a risk assessment, ALARP workshop report or a SMS.  However if the legislative framework and covenants designed to address such risks have not been engaged.  If I were to follow Viva’s position is would seem to me I would have to accept that there was evidence of some risk that neither the Pipeline Act or covenants have adequately addressed and that planning (if it were relevant) would have to step in to fill the breach.  
63	ESG is correct in my view that the onus is on Viva to bring forward evidence or at the very least some substantive basis to support its position about an unacceptable risk.  It has not done so.  Its submissions do not point to any specific risks, only an apprehension of works within the easement.  I am satisfied however that plans do not seek any such works and so the apprehension is misguided.
64	For these reasons I am satisfied that there is no reason in this planning permit application for planning to engage in the matters raised by Viva.  
65	In so far as it is appropriate to ensure the permit does not breach the covenants on the subject land, I agree with ESG that permit conditions that control activity on the easement area are sufficient.  I have therefore included a requirement that the Construction and Environment Management Plan, which will control the works, should include requirements to prevent the movement or storage of construction vehicles, machinery or any other activity associated with the works from transgressing over the easement.  
Conclusion and permit conditions
66	It follows from the above reasons and findings that the proposal is an acceptable planning outcome.  I will therefore set aside the decision of the Responsible Authority and direct the grant of a permit that is subject to permit conditions set out in this order.  
67	The conditions set out in this order are based on the ‘without prejudice conditions’ circulated by the council and responses of ESG.  It will be evident that I have modified many aspects of these conditions.  This is in part due to the fact that I agree with the responses of ESG about the overreach of some of these conditions, but largely due to the fact that many of the conditions were repetitive and sought to have too many management plans controlling the works.  A consolidated approach to managing and conducting the works is preferable.  
68	I have therefore framed the conditions to reduce the number of site management plans without reducing appropriate content and controls.  

Ian Potts
Senior Member	

Appendix A – Permit Conditions

Permit Application No:	PLN20/0405	
Land:	576 Frankston-Dandenong Road
BANGHOLME  VIC  3175	

What the permit allows	
In accordance with the endorsed plans:
•	Earthworks	

Conditions:
Amended plans
1	Prior to the endorsement of plans, amended plans drawn to scale and dimensioned, must be submitted to the Responsible Authority for approval.  No works must be commenced until the plans have been approved and endorsed by the Responsible Authority.  The endorsed copy of the plans forms part of this permit.  The plans must be in accordance with the amended plans filed with the Tribunal in VCAT Proceeding No. P11513/2021 but modified to show:
(a)	The correct SEC easement and a notation to show the Westernport-Altona-Geelong pipeline easement.  
(b)	A notation that each stage of the works must be used to form a soil profile generally in accordance with Soil Profile Re-establishment Procedure prepared by aDAma Consulting dated March 2021 Version 2 – Final.
(c)	Relevant works detail from the endorsed Tree Management Protection Report (TMPR) prepared in accordance with condition 16 of this permit.
(d)	Relevant works detail and layout of internal drainage set out in the endorsed Stormwater Management Plan prepared in accordance with condition 13 of this permit. 
(e)	Relevant details of works areas, provisions made for staff car parking and other areas set out in the endorsed Works and Environment Management Plan prepared in accordance condition 4 of this permit

All to the satisfaction of the Responsible Authority.
General compliance requirements
2	The development (works) as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.
3	Once each stage of the works has started, it must be continued and completed in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.
Works and Environment Management Plan
4	Prior to the endorsement of plans under Condition 1, a Works and Environment Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The Works and Environment Management Plan must address, but is not limited to:
(a)	Hours of construction/works being undertaken, control of noise and airborne matter, deliveries, vehicle access, worker car parking, measure to avoid damage to public assets or repair, and contact numbers for complaints. 
(b)	As applicable, undertaking the works in accordance with the Council Specification Series, Construction, in particular Section 211 Control of Erosion and Sedimentation; Section 212 Clearing and Grubbing and Section 213 Earthworks.   
(c)	Measures to be taken to ensure minimal disturbance to native flora and fauna, including the provision of buffers and vegetation protection zones.
(d)	Soil erosion, siltation, dust, run-off and litter controls to be employed during all phases of the works.  
(e)	Vehicle access provisions to be made into and throughout the land, including works, staff and waste collection vehicles.
(f)	Methods of how pedestrians and vehicles not related to works permitted under this permit will be restricted from entering the works area(s). 
(g)	Methods of how pedestrian and vehicles associated with the works permitted under the permit shall not have access to or otherwise not be permitted onto or over the pipeline easements/covenants along the western boundary of the land.  
(h)	Management of the work site deliveries and other works related activities that will affect offsite vehicle and pedestrian traffic.
(i)	The location of all areas to be used for works staff parking and vehicles associated with the works.
(j)	Details of any work site sheds, portable toilet(s), storage and materials, etc located within the land.
(k)		The management of all internal roads/ internal tracks/storage areas and stockpiles/external stockpiles/or vacant areas so as to avoid dust nuisance to any adjoining residential and commercial premises.
(l)		How the depositing of mud, dirt, sand, soil, clay or stones on the abutting roads will be minimised when vehicles are leaving the land, including but not limited to the installation of and use of a truck wheel-wash, rumble strips or the similar.
(m)	Details of methods to manage stormwater or runoff from the works areas that prevents sediment laden water, or water contaminated with oil, foam, grease, scum or litter from discharging to the external stormwater drainage system.  
(n)	Storage of wastes in designated areas or covered containers that prevent escape into the environment (i.e. air, soil or water), including the external stormwater system.  
When approved, the Construction and Environment Management Plan will be endorsed and will form part of this permit.
5	The provisions, recommendations and requirements of the endorsed Works and Environment Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority. 
Control of soils profiles and imported fill
6	Prior to the commencement of the works the report Soil Profile Re-establishment Procedure prepared by aDAma Consulting dated March 2021 Version 2 – Final must be submitted to and endorsed by the Responsible Authority.  When endorsed the Soil Profile Re-establishment Procedure will form part of this permit.  
7	During the works all actions and measures identified in the endorsed Soil Profile Re-establishment Procedure prepared by aDAma Consulting dated March 2021 Version 2 - Final must be implemented to the satisfaction of the Responsible Authority and the soil to be imported on the subject site must be compatible with flower and pasture growing. 
8	At the completion of each stage of the works, a report must be provided by a suitably qualified person which demonstrates to the satisfaction of the Responsible Authority that the fill and soil imported onto the site under this permit has been used to prepare soil profiles generally in accordance with the endorsed  Soil Profile Re-establishment Procedure prepared by aDAma Consulting dated March 2021 Version 2 – Final and that the profiles are suitable for the growing of flowers and pasture. 
9	The owner and/or operator of this permit must ensure that no fill brought to the site originates from any land which is identified by the Environment Protection Authority in the "State Register of Contaminated Sites" as being contaminated.  
10	Only fill material as defined in Environment Protection Authority’s Protocol for Waste disposal categories – characteristics and thresholds, Publication 1828.2, March 2021 (or as amended) must be used in the works hereby approved under this permit.  
11	Except with the written consent of the Responsible Authority, all topsoil removed during the earthworks must be stockpiled, maintained in a weed-free condition, re-spread on disturbed ground as soon as practicable after completion of the earthworks and revegetated to prevent erosion, all to the satisfaction of the Responsible Authority.
12	Upon the written direction of an authorised officer of the Responsible Authority, the land owner, occupier, or any person with an interest in the land fill works the subject of this permit, must within seven (7) days of such notification provide evidence that the permitted volume of fill material imported onto the land and final finish surfaces permitted under this permit have not been exceeded.  The evidence of fill volume and final finishes surfaces must be in the form of certification from a suitably qualified and registered practitioner of land surveying.
Stormwater Management
13	Prior to the endorsement of plans under Condition 1, an amended Stormwater Management Plan (SWMP) must be submitted to and approved by the Responsible Authority.  The amended SWMP must be generally in accordance with the Stormwater Management Plan prepared by KLM Spatial dated February 2022 but amended to:
i	demonstrate that drainage outflows from the development will be no greater than the existing flow rates from the land prior to the works for all rainfall events from the 20% AEP up to and including the 1% AEP, to the satisfaction of the Responsible Authority; 
ii	delete the requirement for, or any references to an additional drain on or to the west of the western boundary of the subject land; and
iii	provide details of water quality treatment features prior to discharge of stormwater to the legal point of discharge.  
When the SWMP is approved by the Responsible Authority, it will be endorsed and from part of this permit. 
14	Prior to the works commencing. drainage drawings and calculations to the satisfaction of the Responsible Authority generally in accordance with the endorsed SWMP must be submitted to and approved by the Responsible Authority.  
15	The provisions, requirements and recommendations of the endorsed SWMP must be implemented and complied with to the satisfaction of the Responsible Authority. 
Tree Management and Protection
16	Prior to the endorsement of plans pursuant to Condition 1, a Tree Management & Protection Report (TMPR), prepared by a suitably qualified arborist, to the satisfaction of the Responsible Authority, must be submitted to and be endorsed by the Responsible Authority.  The TMPR must include a Tree Protection Plan (TPP) prepared in accordance with AS4970-2009 Protection of Trees on Development Sites and provide for Tree Protection Zones for the trees to be retained on the site.  
The TPP must: 
(a)	Be legible, accurate and drawn to scale.
(b)	Show the location of all tree protection measures to be utilised.
(c)	Include a key describing all tree protection measures to be utilised.
(d)	Show all Tree Protection Zones required in this permit.
The TMPR must include but is not limited to:
(a)	The TPP.
(b)	Tree protection measures to be utilised, including the Tree Protection Zones measures required by condition 18 of this permit. 
(c)	The timing of the tree protection measures including the measures to be implemented before the works commences.
(d)	Appointment of a project arborist detailing their role and responsibilities. 
(e)	The contact details of the project arborist.
(f)	A requirement that prior to the commencement of any works, an assessment of the health and structure of the trees be undertaken by the project arborist.
(g)	A logbook in which the project arborist must record after each inspection:
i	the details of the health and structure of the trees being retained.
ii	The condition of all physical tree protection measures.
iii	Adherence to the tree protection measures set out in the TMPR.
(h)	The stages of the works and the frequency of when the project arborist will inspect the tree protection measures.  
(i)	The stages of the works and frequency of when the project arborist will inspect the health and structure of the trees to be retained, with particular regard to impacts arising as a result of the works and hydrological changes.  
(j)	How all staff, workers, contractors, sub-contractors and tradespersons undertaking the works will be made aware of the contents of the TMPR.
17	The person in charge of the works must ensure that all staff, workers, contractors, sub-contractors and tradespersons undertaking the works are aware of the contents of the TMPR to the satisfaction of the Responsible Authority. 
18	All protection measures identified in the Tree Management & Protection Report must be implemented and permitted works must be undertaken in accordance with the Tree Management Protection Report, to the satisfaction of the Responsible Authority.  
19	On reasonable request the TMPR logbook must be made available for inspection by the Responsible Authority.  
20	Any modification to the Tree Management Protection Report (including but not limited to the Tree Protection Plan) must be approved by the project arborist and submitted for approval by the Responsible Authority.  No changes to the implementation of the Tree Management Protection Report must be made until the modifications are approved by the Responsible Authority and the modified TMPR is endorsed by the Responsible Authority 
21	Prior to the commencement the works, all actions and measures identified in the Tree Management Protection Report that are to be implemented before the works commence, including but not limited to the installation of Tree Protection Zone measures, must be implemented to the satisfaction of the Responsible Authority.  
Tree protection zone requirements
22	All Tree Protection Zones (TPZ) must meet the following requirements:
(a)	The fencing is to be constructed and secured so its positioning cannot be modified by site workers. 
(b)	Be constructed of cyclone wire, orange safety mesh or similar construction.
(c)	Be erected to a height of at least 1.8 metres.
(d)	Be anchored using star pickets driven at least 60cm into the soil.
(e)	The Tree Protection Zone is to be established and maintained in accordance with AS 4970-2009. 
(f)	Remain in place until the development is completed.
(g)	Each TPZ shall not be removed until construction is fully completed.
(h)	Provide for access by a single gate that should be locked at all times except when required for tree inspection or maintenance.
(i)	Areas within the TPZ must not be used:
i	For vehicular or pedestrian access, no trenching or soil excavation is to occur.
ii	For storage or dumping of tools, equipment, materials or waste is to occur.
iii	For storage of any vehicles, machinery, equipment or other materials.
iv	Entry and exit pits for underground services.
All to the satisfaction of the Responsible Authority.
23	The works 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.
24	No buildings or works may be undertaken or constructed over any easement or other restriction on the land, or any sewers, drains, pipes, wires or cables under the control of a public authority, without the prior written consent of the relevant authority and the Responsible Authority or as otherwise permitted in accordance with the restriction or covenant on the land or associated with the easement.
Permit expiry 
25	This permit will expire if:
(a)	The development does not start within two (2) years of the date of this permit, or
(b)	The development is not completed within four (4) years of the date of this permit.
26	Before the permit expires or within six (6) months afterwards or as otherwise provided for under section 69 of the Planning and Environment Act 1987, the owner or occupier of the land may request the Responsible Authority to extend the expiry date.  Such a request must be made in writing to the Responsible Authority. 
- End of conditions -