Water Journal : Water Journal November 2011
feature article feature articles 54 NOVEMBER 2011 water land was zoned Rural Living in the Scheme. He applied to the Murrindindi Shire Council (Council) for a planning permit to build a residential dwelling on his land. However, the Council refused to grant a permit on the basis of the proximity of the dwelling to the wastewater treatment plant. Mr Weightman applied to VCAT to review Council's refusal. VCAT affirmed the Council's decision on the following grounds: • The proposed dwelling would be 350m inside the Buffer Guidelines' recommended buffer distance of 700m for the Alexandra WWTP; • The Buffer Guidelines placed an onus on Mr Weightman to justify why the recommended buffer area should be varied to allow his proposed residential use inside the wastewater treatment plant's buffer area. In the course of its decision, VCAT expressed frustration at the general lack of recognition of wastewater treatment plant buffer areas, which could leave many residents unaware of potential restrictions on the future use and development of their land. The Woodman Point Wastewater Treatment Plant Buffer Inadequate recognition of wastewater treatment plant buffers in planning schemes is not an issue unique to Victoria. For instance, an almost identical scenario occurred in Western Australia recently with, not surprisingly, the same results for the applicant landowner, Mr O'Brien (O'Brien & Anor and City of Cockburn  WASAT 240 and O'Brien and City of Cockburn  WASAT 101). Western Australia's State Administrative Tribunal (SAT), which exercises a jurisdiction very similar to VCAT in Victoria, considered two structure plan proposals in 2008 and then again in 2010 by a nearby resident, Mr O'Brien, to subdivide his property for residential development. Mr O'Brien's property was located within the buffer area of the Woodman Point Wastewater Treatment Plant. Woodman Point is 30km south of Perth's CBD. It is owned and operated by WA's Water Corporation, which operates 102 wastewater treatment plants throughout the State and is the largest wastewater treatment plant in WA. It was constructed in 1966, and has since been the subject of expansion projects. It currently serves a catchment population of 600,000, which is expected to double by 2045. Plans are already underway to double the plant's current design capacity. The City of Cockburn Town Planning Scheme No.3 (Scheme) recognised, albeit not very clearly, a buffer area around Woodman Point to manage odour emissions. Woodman Point has an extensive history of odour problems and complaints. The City of Cockburn, therefore, refused to advertise the O'Briens' proposed structure plan, leaving the O'Briens with no other option to progress their subdivision plans but to seek a review of the City's refusal in the SAT. The O'Briens contended that odour problems from the plant were now minimal and residential development of their property should, therefore, be allowed to proceed. For this reason, the Water Corporation applied for and obtained an order from the SAT requiring the production of documents held by the Department of Environment and Conservation (DEC) recording numerous complaints made by the O'Briens to the EPA and the Minister for Environment about odour emissions from Woodman Point over a number of years. The SAT noted that the documents produced by DEC showed the O'Briens did not make any complaints from February 2007 onwards which, the SAT suggested, was more likely evidence of the O'Briens' desire to progress their structure plan proposal rather than evidence of improvements in odour emissions from Woodman Point. In 2008, the SAT refused to allow the O'Briens' structure plan proposal to proceed, stating: • There were ongoing odour problems affecting the O'Briens' land; • The EPA's advice to the Minister for Environment to retain Woodman Point's buffer area, until planned odour upgrade works and modelling had been completed, is an appropriate and proper course of action; • A residential development proposal within an area subject to ongoing odour emissions is not consistent with orderly and proper planning. The O'Briens once again applied to the SAT to review the City of Cockburn's refusal in late 2009, which was again refused. The Tribunal stated that it "is aware that the Woodman Point WWTP is a major service facility fundamentally important to the urban infrastructure needs of the southern metropolitan area. It will have an on-going function and a likelihood of greater demands for waste water treatment service in coming years. In the circumstances, it is important not to anticipate a reduction of its buffer requirements prematurely in the absence of sound, science-based reasoning. That reasoning is not yet to hand." Once again the SAT determined in its 2010 decision that residential development within the Woodman Point buffer area was not consistent with orderly and proper planning and refused to allow the O'Briens' second structure plan proposal to proceed. Conclusions Wastewater treatment plants provide an essential service to urban populations. Provision for, and recognition of, buffer areas is an essential environmental and planning law tool in protecting the integrity of the long-term ability for wastewater treatment plants to continue to serve their catchment populations. The piece-meal erosion of buffer areas through the ad hoc approval of incompatible land use and development within buffer areas not only places unnecessary compliance pressure on existing wastewater treatment plants, it can also fundamentally undermine future proposals to expand or modify existing plants or establish new plants to serve the needs of growing populations. The environmental and planning law regimes recognise that, in some circumstances, the public good must take priority over individual landowners' expectations regarding the future use and development of their land. An urban population's requirement for secure, uninterrupted access to wastewater treatment services is such a circumstance. The ongoing vigilance of local governments and the courts in protecting the integrity of wastewater treatment plants through the recognition and maintenance of buffer areas is, therefore, a critical component in ensuring the longevity of these valuable components of urban infrastructure.
Water Journal December 2011
Water Journal September 2011