update Water, Planning & Environment

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1 Protecting the integrity of wastewater treatment plants through environmental and planning laws Essential urban infrastructure In stark contrast to the general perception that the vast quantities of wastewater we send every day to wastewater treatment plants have little value, the plants themselves are extremely valuable. Despite this recognition of value, the integrity of those plants is under constant threat. Wastewater treatment plants represent essential urban infrastructure. Every resident in every urban area expects to be able to flush the toilet or pull the plug and see wastewater disappear without the need for further thought or action. Many industrial processes also need to lawfully discharge large quantities of trade wastes without the risk of interruption. To put the value of wastewater treatment plants into context, Melbourne Water owns and operates the city of Melbourne s sewerage system. This sewerage system serves a population of over 3 million people and consists of just two wastewater treatment plants: the Western Treatment Plant dates back to 1897 and treats 60% of Melbourne s sewage; and the Eastern Treatment Plant which opened in 1975 and treats the remaining 40% of Melbourne s sewage. Every single day, Melbourne Water s two wastewater treatment plants treat enough wastewater to fill 296 Olympic swimming pools. It takes years and many millions of dollars to design, approve, construct and commission wastewater treatment plants. They cannot be replaced quickly or easily. The single most significant challenge to maintaining the integrity of wastewater treatment plants is protecting the ability of those plants to continue to operate in the face of increasing pressure to use and develop surrounding land for uses that are not compatible with the environmental impacts associated with wastewater treatment processes. In this update we discuss the environmental and planning issues arising in relation to wastewater infrastructure in the context of the Victorian regime. These issues are equally important in other jurisdictions. Environmental law issues The Environment Protection Authority Victoria (EPA) administers the Environment Protection Act 1970 (EP Act). The EPA is responsible for producing environmental policies and guidelines, as well as issuing and enforcing works approvals and licences that manage the environmental impacts of wastewater treatment plants. Here s a brief overview of EP Act policies, guidelines and approvals relevant to the establishment and operation of wastewater treatment plants. Air Quality Policy The EPA establishes design criteria for emissions of mixed odorous substances, such as those produced by wastewater treatment plants, in the State Environmental Protection Policy (Air Quality Management) (Air Quality Policy). The Air Quality Policy sets design criteria for a new wastewater treatment plant to achieve an odour detection threshold of one odour unit at and beyond the boundary of the plant. One odour unit is most simply described as the lowest odour concentration that can be detected by half of the population. However, acceptable odour emission levels for existing wastewater treatment plants are considered on a case-by-case basis, as upgrades and modifications are approved and implemented, and in accordance with what odour emission reduction can be achieved adopting best practice to the maximum extent achievable. Buffer Guidelines The treatment processes employed within wastewater treatment plants can, and sometimes do, have an impact on the environment. The emission of offensive odour from wastewater treatment processes is the environmental impact of most significant concern to most people. For this reason, the EPA recommends the implementation of buffer distances for wastewater treatment plants in its Recommended Buffer Distances for Industrial Residual Air Emissions, EPA Publication No. AQ 2/86, July 1990 (Buffer Guidelines). Buffer distances are intended to discourage the establishment of land use and development on land within a designated area that is sensitive to, and incompatible with, environmental impacts resulting from the operation of wastewater treatment plants.

2 The scientific rationale underpinning the calculation of buffer distances is the distance needed for emissions to dissipate without adversely affecting sensitive land uses. The EPA recommends in its Buffer Guidelines buffer distances of between 100m and 2.2km, depending on the type and number of treatment processes used in a wastewater treatment plant and its overall design capacity. The Buffer Guidelines provide for variations to recommended buffer distances, but only to the extent that specified criteria are satisfied. The criteria relate to matters such as effectiveness of emission control technology, complaints history, plant size as well as topographical and meteorological conditions which influence the dispersion rate of emissions: As a guide, the following criteria should be satisfied before detailed consideration is given to site-specific variation of a guideline distance listed in this document. (a) (b) (c) (d) (e) The plant has a standard of emission control technology significantly greater than the good level of control assumed in the preparation of this document. Best Available Technology would normally be necessary. An environmental audit of residual emissions has been completed. There is no history of complaints arising from residual emissions (in the case of an existing plant). The plant is significantly larger or smaller than those on which the recommended distance is based, to an extent which will substantially affect residual emissions performance. There are exceptional topographic or meteorological characteristics which will affect dispersion of residual air emissions. Satisfaction of these criteria will be a prerequisite for considering site-specific variation of the recommended distance... 1 Works approvals and licences Construction of Barwon Region Water Authority s new $94 million Northern Water Plant in Geelong started in March The plant s construction is authorised by a works approval issued by the EPA because the plant itself constitutes a prescribed premises for the purposes of the EP Act. A works approval is required to construct a prescribed premises under section 19A of the EP Act. A licence is then required to operate a prescribed premises under section 20 of the EP Act. Prescribed premises are defined and listed in the First Schedule of the EP (Scheduled Premises and Exemptions) Regulations 2007 (EP Regs). The EP Act and EP Regs define wastewater treatment plants as prescribed premises on the basis of design or flow rate. All wastewater treatment plants processing more than 5,000 litres of sewage a day are defined as Type A prescribed premises: A03 (Sewage treatment) Premises on or from which sewage (including sullage) effluent, exceeding a design or actual flow rate of 5000 litres per day, is treated, discharged or deposited. Wastewater treatment plants falling within this definition require both a works approval from the EPA (to be constructed and commissioned) and then require a licence from the EPA (to operate). When construction of the Northern Water Plant is completed at the end of 2012, the plant will: treat domestic wastewater from Geelong s northern suburbs; treat trade waste from Shell Oil s refinery (the plant will be constructed adjacent to the crude oil tank farm which forms a part of the refinery); supply fit-for-purpose recycled water to Shell for use in its refinery boilers and for fire fighting reserves; supply recycled water to irrigate local recreation fields; and produce biosolids for beneficial reuse opportunities. While the Buffer Guidelines recommend a buffer distance of 400m to the nearest residential dwelling, the Northern Water Plant incorporates a varied buffer distance of 300m. Because the Northern Water Plant will incorporate, amongst other things, covers on major odour emission sources and odour extraction and treatment technology in the new plant design, the EPA agreed that the plant had satisfied relevant Buffer Guidelines criteria for a variation to the recommended buffer distance. The works approval conditions imposed on the Northern Water Plant include requirements to: submit an environmental management plan to the EPA describing how environmental impacts will be managed during the construction phase; construct the plant in accordance with the works approval application submitted to the EPA; submit a commissioning plan to the EPA detailing how, once the wastewater treatment plant is operating: odour emissions will be monitored and assessed; and the effectiveness of odour control measures will be monitored. The works approval also included a standard condition preventing the approval taking effect until all planning permits required under the Planning and Environment Act 1987 (P&E Act) to use and develop land for the purposes of the plant had been obtained. As it happened, Mr Linaker applied to VCAT to review both the EPA s decision to issue a works approval and Greater Geelong City Council s decision to grant a planning permit for the Northern Water Plant. Mr Linaker sought an order from VCAT requiring Barwon Water to review its design of the Northern Water Plant which, he argued, was flawed. 1 Buffer Guidelines, pages 3 4.

3 VCAT issued its decision on 5 November 2010 striking out and dismissing both applications for review on the basis that Mr Linaker lacked standing to make the applications 2. The Tribunal found that Mr Linaker was not a person whose interests were affected by the issue of a works approval or the grant of a planning permit for the Northern Water Plant. The decision, in turn, allowed the works approval and the planning permit, for what VCAT described as a project of significance, to take immediate legal effect and for construction of the plant to commence. Planning law issues When reviewing planning permit applications to use and develop land for wastewater treatment plants, VCAT must take into account and give effect to, amongst other things, the Air Quality Policy and the Buffer Guidelines. VCAT decisions considering new wastewater treatment plants are rare, because proposals to either create new plants or expand or modify existing plants are not themselves common. VCAT s consideration of the proposal to use and develop land in Geelong for the Northern Water Plant would have been one of the few, recent decisions on a new wastewater treatment plant. However, VCAT struck out Mr Linaker s application to review the grant of the planning permit for the plant. 2 Peter Linaker v Greater Geelong CC & Ors [2010] VCAT What is more common, however, is for VCAT to consider proposals to use and develop land within buffer areas for existing wastewater treatment plants. A very good example of this is VCAT s decision on Mr Weightman s proposal to establish a residential dwelling on land he owned which was located within the buffer area of the Alexandra wastewater treatment plant 3. The Alexandra wastewater treatment plant buffer The Alexandra wastewater treatment plant is owned and operated by Goulburn Valley Water. It receives domestic wastewater and septic tank waste from Alexandra and its surrounds, as well as trade waste from a local abattoir. The plant was established in 1970 and upgraded in Additional land was purchased for buffer purposes after the completion of the upgrade. Both the land occupied by the wastewater treatment plant and the additional land purchased for buffer purposes is zoned Public Use 2 in the Murrindindi Planning Scheme (Scheme). Mr Weightman owned two lots of land to the immediate north of the wastewater treatment plant. However, part of that land lay within the plant s recommended buffer area. Mr Weightman s land was zoned Rural Living in the Scheme. He applied to Murrindindi Shire Council (Council) for a planning permit to build a residential dwelling on his land. 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. 3 Weightman v Murrindindi SC [2005] VCAT VCAT affirmed the Council s decision to refuse to grant a planning permit on the following grounds: the proposed dwelling would be 350 metres inside the Buffer Guideline s recommended buffer distance of 700 metres for the Alexandra wastewater treatment plant; the scheme provisions required VCAT to consider the Buffer Guidelines and VCAT, therefore, concluded that it must give those guidelines weight; the Buffer Guidelines placed an onus on Mr Weightman, as the applicant for a planning permit, to justify why the recommended buffer area should be varied to allow his proposed residential use inside the wastewater treatment plant s buffer area: The onus will be on the party seeking variation of the recommended distance to demonstrate clearly that that distance is inappropriate for the particular situation 4. VCAT concluded that, in the absence of expert evidence to support a variation to the recommended buffer area, it could not make a finding that a house located so far within the buffer area was acceptable in terms of orderly and proper planning and the impact of the proposed dwelling on the long term operations of the wastewater treatment plant. The following quote captures the essence of VCAT s decision: It is easy to say that one more house will make no difference but that is the case for most permit applications that involve matters at a micro-scale. Each decision in its own small way can assist or undermine the Scheme s objectives. That is why the principles of orderly and proper planning are so important and they demand great caution when the outcome might be to exacerbate a situation where potentially incompatible land uses occur too close together 5. In the course of its decision, VCAT expressed a degree of frustration at the general lack of recognition of wastewater treatment plant buffer areas, either through zones or overlays, in planning scheme provisions which VCAT considered could leave many residents unaware of potential restrictions on the future use and development of their land: 4 Buffer Guidelines, page 4. 5 Weightman at [24].

4 ... I observe that this is one of a number of recent cases of which I am aware where the development of a dwelling or subdivision near to a wastewater treatment plant has been opposed by a Council and/or water authority but there has been no explicit statutory provision drawing attention to the presence of the facility and buffers i. In Boyer, Member Hewet was critical of the lack of action taken in relation to achieving planning scheme recognition of buffer areas, a matter upon which I also made comment in Sandow when referring the buffers adopted by the North East Region Water Authority for the Yarrawonga wastewater treatment plant. With information at hand as to possible buffer distances, it is unreasonable to leave land owners potentially unaware of the issues in relation to opportunities for development near to wastewater treatment plants where buffers are not wholly contained on authority land. The proper course is to identify the buffers an authority believes appropriate for each facility and then seek recognition through a scheme amendment 6. i Boyer v Strathbogie SC [2004] VCAT 1624; Sandow v Rural City of Benalla [2004] VCAT 1998; Central Highlands Region Water Authority v Ballarat City Council and Anor (Application for Review No. P2518/2004). 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. 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 Mr O Brien to provide for the subdivision of his property (as well as adjacent land) for residential development 7. Mr O Brien s property was located within the buffer area of the Woodman Point wastewater treatment plant. Woodman Point is located approximately 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. 6 Weightman at [10]. 7 O Brien & Anor and City of Cockburn [2008] WASAT 240 and O Brien and City of Cockburn [2010] WASAT 101. Woodman Point is the largest wastewater treatment plant in WA. It was constructed in 1966, and has been the subject of expansion projects since then. It currently serves a catchment population of 600,000, which is expected to double by 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 for the purpose of managing odour emissions from wastewater treatment processes. 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 review of the City s refusal in the SAT. The O Briens contended that odour problems from the Woodman Point wastewater treatment 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 documents were tabled as evidence in the SAT to support the Water Corporation s case that the O Briens residential proposal was not an appropriate use or development of land within the Woodman Point buffer area which was still required to manage odour emissions. In response to Water Corporation s application to renew a licence required to continue operating Woodman Point, the O Briens had stated in a submission to the WA Minister for Environment that: We have been suffering odour emissions for years, have made many complaints for years and in 2004 presented a petition from the community of 467 signatures to the EPA... 8 The EPA recorded the following statement in a contemporaneous filenote of one of the O Briens numerous complaints: 8 O Brien [2008] at [41]. Woodman Point... is causing strong odour that is stinging Ms O Brien s nostrils. The situation has been ongoing for about six weeks, and Ms O Brien has reported to the Water Authority and also to [Woodman Point]... 9 The SAT noted that the documents produced by DEC in response to its order showed the O Briens did not make any complaints from February 2007 onwards. However, the SAT boldly stated its view that this 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: Shortly after Mrs O Brien s February 2007 incident report to the EPA... Mr and Mrs O Brien approached... a consultant town planner, to prepare the proposed structure plan. In light of the extensive history of odour problems and complaints, and given that the Stage 1 works have not yet been completed, the Tribunal infers that the lack of complaint by Mr and Mrs O Brien since February 2007 is due to the preparation and advancement of the proposed structure plan, rather than to improvements in odour control at Woodman Point. 10 The SAT determined in 2008 that: there were ongoing odour problems from the operation of Water Corporation s Woodman Point wastewater treatment plant affecting the O Briens land and the surrounding proposed structure plan area; the EPA s advice to the Minister for Environment to retain Woodman Point s buffer area, until planned odour upgrade works had been completed and subsequent odour modelling and ground-truthing could be undertaken to determine the extent of odour impact and whether or not a variation to the buffer could be supported, 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 Brien property and the balance of the structure plan area were inside the buffer area; and 9 O Brien [2008] at [42]. 10 O Brien [2008] at [45].

5 Scheme provisions excluded residential development within the buffer area, so again the O Brien s residential proposal was not consistent with orderly and proper planning. The SAT refused to allow the O Brien structure plan proposal to proceed. Then in late 2009, the O Briens once again applied to the SAT to review the City of Cockburn s refusal to advertise a structure plan proposal that would allow them to subdivide their property for residential development. The O Briens contended that their second structure plan proposal should be allowed to proceed because: the second structure plan was entirely different to the first structure plan; odour emissions from the Woodman Point wastewater treatment plant had improved since the SAT s decision in 2008; and the O Briens were experiencing an untenable level of financial hardship in not being able to develop their land in accordance with their expectations. The SAT (differently constituted to the Tribunal that decided the O Briens 2008 application for review) was not persuaded by the O Briens first two arguments. In relation to the need to maintain the integrity of the Woodman Point buffer area until robust evidence could support its variation, the SAT stated: The Tribunal 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. 11 While the SAT acknowledged that the O Briens were enduring financial hardship, and this was a matter the SAT is allowed to have regard to, it could not be allowed to affect the application of sound planning principles including what constitutes orderly and proper planning in the particular circumstances of the case. 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. 11 O Brien [2010] at [114]. 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. This article was prepared by Theresa Le Bas, Senior Associate in Maddocks Planning & Environment Team.

6 maddocks Water, planning & environment For further information regarding any of the articles in this Update, please contact a member of our team below: Maria Marshall Partner maria.marshall@maddocks.com.au Patrick Ibbotson Partner patrick.ibbotson@maddocks.com.au John Thwaites Consultant john.thwaites@maddocks.com.au Theresa Le Bas Senior Associate theresa.lebas@maddocks.com.au Michael Winram Senior Associate michael.winram@maddocks.com.au Nicole Sommer Associate nicole.sommer@maddocks.com.au Dariel De Sousa Consultant dariel.desousa@maddocks.com.au The material contained in this Update is of the nature of general comment only. No reader should rely on it without seeking legal advice. If you do not wish to receive further Updates from us, please marketing@maddocks.com.au. Maddocks Lawyers Angel Place 140 William Street 123 Pitt Street Melbourne Victoria 3000 Sydney New South Wales 2000 Australia Australia Telephone Telephone Facsimile Facsimile info@maddocks.com.au Affiliated offices Adelaide, Auckland, Beijing, Brisbane, Colombo, Dubai, Hong Kong, Jakarta, Kuala Lumpur, Manila, Mumbai, New Delhi, Perth, Singapore, Tianjin