Planning Panels Victoria conducted its hearing on C117 over three days from October 10th. Warrandyte was there in force, with six submitters, including four associated with the WCA. The WCA was also represented by resident barrister and friend of the green wedge, Daniel Epstein, who called planner James Livingstone as an expert witness.

C117 is an amendment to the Manningham Planning Scheme which in August we called the ‘Cluster Amendment’. This was in part because it introduced the notion of a ‘tourist cluster’ in South Warrandyte, a formula for populating that part of the Manningham green wedge with restaurants, hotels and function centres. The amendment is not easy to interpret, a significant fault, but the general thrust is to give up on agriculture and allow commercial development. This is not a straightforward thing to achieve in a municipal planning scheme, since local schemes are subservient to the State planning scheme, but we think the intent was clear. You can learn a lot more about what we think of C117 in the WCA submission.

This trend to give up on agriculture and push for commercial development is not an issue restricted to Manningham. It  is an issue potentially affecting all green wedges  so  C117 has an importance beyond Manningham.

A brief explanation of process. All Planning Scheme amendments are subject to approval by the Minister for Planning. If a proposed amendment has been the subject of objections, as was C117, it will be subjected to a Planning Panel, which consists of a hearing conducted before one or more Planning Panel members, after which the member or members consider the amendment and produce a report to the proposer, in this case the Manningham Council, and the Minister. The proposer then either accepts the amendment, accepts it  in part or with modifications  or rejects it. The Minister has the final say.

This Panel consisted of one experienced member as chair, Mr Lester Townsend. The hearing was conducted over three days, Wednesday and Thursday at the Manningham Council offices and Friday at Planning Panels Victoria at 1 Spring Street. Planning Panels are supposed to be informal and they are, but possibly because of the great power of the Panel member, they actually are quite formal, in the sense that you would not interject, ever, and the member is called ‘Sir’or ‘Mr Chairman’. Everyone else is either ‘Mr’ or ‘Ms’.

Mr James Livingstone, Planner for WCA; Mr Lester Townsend, Panel; Ms Susan Ross, Manningham;
Dr Joseph Monaghan, Holding Redlich for Manningham; Mr Daniel Epstein for WCA

Planning Panels are conducted at the rate of several every week and they range over the full gamut of planning issues. Only occasionally would the issue concern Melbourne’s green wedge land.  The outcome of a Panel is determined behind closed doors by the member or members, and no indication of the likely outcome is given during the hearing.

Although the process is informal and submitters do not need legal representatives, some submitters were represented in this case, including the Council. Submitters are heard and may be quizzed by the Chair for clarification or background, but not cross-examined by Council. But there are special rules for expert witnesses, who may be cross examined.

Manningham was represented by Dr Joseph Monaghan, a lawyer from Holding Redlich, supported by two Council planners, Susan Ross and Matt Lynch. His opening approach seemed narrow and legalistic, focussing mainly on a complaint that he was ‘taken by surprise’ by the WCA expert, James Livingstone, because his participation was notified late.

It is fairly clear what C117 is about: it asserts that traditional agriculture is declining and recommends responding by ‘encouraging’ tourism-related development, possibly in clusters. Only ‘fairly’ clear because at a practical level its intent is not spelled out. It’s hard to tell what sorts of development applications will get permits that would not have before, but it’s clear that Council wants that sort of result.

WCA expert witness James Livingstone hazarded an estimate of what might have been its effect on the recently rejected application to build a 49 room hotel, a function room and winery in Brumbys Road, South Warrandyte. This application was rejected by VCAT  on the grounds of the excessive bulk and scale of the built form and it’s impact on traffic flows. James suggested that under the current Scheme its chances of success were 45%, but if C117 had been in effect its chances would have been 49% – 55%. While it seems clear that would be the direction of C117’s impact, nobody really knows the likely magnitude of that impact.

Submission to the Panel could be divided into three types, sometimes overlapping:

  • Committed. Focusing on the value of the green wedge and the townships, and the potentially damaging impacts of C117.
  • Forensic. Submissions which critically address the content of C117 directly.
  • Self interested. Submissions by or on behalf of property owners related to specific concerns about their own property

The designated WCA submission, presented by Alan Thatcher, fell into the ‘forensic’ category.

Of the self- interested submissions only one was directly related to the general thrust of C117. This was from Brumbys Road Investments, owners of the Olivignia restaurant and the applicant in the VCAT case involving the hotel and winery mentioned above.

Others related to the inadequate café seating provision in Warran Glen nursery’s ‘existing use’ permit; Jamie Day’s proposal to build a camping park on Pound Bend;  permit requirements in relation to conducting a business including permaculture and artisan studios in Wonga Park, and concern that one owner may not be able to build the sheds he wants if C117 is accepted. This last one related to a particular part of  C117, modifications to 22.19 concerning outbuildings in the Low density residential zone so that it also applies to the Rural Conservation Zone. It is difficult to see how any of these submissions could make a significant contribution to the Panel’s task of assessing C117.

Robyn Gillespie of Andersons Creek Landcare was a ‘committed’ submitter. She referred to  the contribution of Landcare volunteers from far and wide, and spoke powerfully about what would potentially be lost if commercialism was allowed to erode the green wedge. A particular issue raised was the likely effect on what are currently back roads as traffic volumes increase as a result of relaxing green wedge protections. A poignant anecdote concerned a recent exercise in which grandchildren were involved in collecting 100 dead frogs in Gold Fields Memorial Road, squashed by cars after a recent shower.

Christine Andell lives on Warrandyte Ringwood Road, the area targeted in C117 for an undefined ‘tourist cluster’. The points she made in her submission included:

  • adding more businesses along this road may cause the number of tourists to go down rather than up, as the area becomes less attractive.
  • The existing businesses in the area don’t employ locals anyway, preferring experienced staff from outside the area or agencies.

She suggested that she was not in favour of sacrificing our green wedge in the interests of a dining experience for people from Northcote.

Christine also included a forensic point, criticizing the manifest lack of clarity in the ‘Rural Land Uses Position Paper’, referred to as a ‘background document’ in the amendment.  In conclusion she said “I understand Council’s wish to limit the complexities and expense of dealing with persistent developers, often in VCAT, as they seek to re-interpret ‘in conjunction’ to suit their own projects, but at the very least such external State-legislated limitations and scrutiny remain essential to help control the intensity and appropriateness of land development in GW areas.”

WCA member Joy Dahl, US born but 32 year Warrandyte resident, focused on “how C117 will..undermine and devalue what is Manningham’s unique, precious, delicate treasure – Warrandyte”. A Pound Bend resident, she also decried the camping park proposal with particular reference to the inability of the narrow, twisty roads of the area to cope with what she suggested would be an increase in traffic flow.

The submission by WCA member Val Polley, retired urban geographer who has served on Planning Panels in the past, made a comprehensive forensic submission. She observed that:

“Whereas in the past (the language regarding the Manningham Green Wedge) has centred on conservation, protection of fauna, flora and landscape and other environment issues, and enjoyed the support of local members and councillors, now the language is switching to that of economic advantage and tourism development”

The statement of the WCA’s expert witness, planner James Livingstone, listed ‘conclusions’  including the following:

  • There is no strategic justification for parts of the amendment.
  • I believe the proposed amendments to clause 21.07 do not provide any greater certainty or clarity to the scheme.
  • I do not believe the Green Wedge Action Plan and the Rural Areas Land Uses Position Paper are appropriate as Reference Documents.
  • I do not believe the proposed clause 22.20 is an acceptable addition to the Manningham planning scheme, as it will not assist in improving the ability of decision makers to decide on planning application in the Rural Conservation Zone.

He related clause 21.07 of C117 to the objectives of clause 51.02 in the State Planning Scheme, a clause which applies to all green wedge zones  and contains the ‘in conjunction’ provision. He said that

“in my view the objectives (of clause 51.02) give a clear preference to agricultural and environmental values or other uses, yet if we compare the changes to clause 21.07 with the current wording we can see a ‘shift’ away from the original expression, towards one that provides more support for ‘tourism offerings’”

He was concerned that a potential applicant may be misled by clause 22.20 of C117 into thinking that a permit to build a restaurant could succeed even though it did not satisfy clause 51.02. You can read James’s statement here.

Daniel Epstein followed James, on behalf of the WCA, leading him through some questions and continuing with some general remarks, citing the need to resist development pressures from people wanting to make money, noting that the green wedge was established to do just that.

Structure

In addition to the amendment and reports put on exhibition, Council’s case was documented in two statements, a ‘Part A Submission’, which  is on the Council website here, and a Part B Submission which is not, but which Dr Monaghan presented to the Panel and spoke to selectively. Both documents provide an overview of the community submissions as they were originally received, along with the Council’s responses.

There is an essential tension within C117 which is just not admitted by Council. Its purpose is quite obviously to have the effect of allowing more tourist oriented development, but it tries to do this without addressing the actual controls on allowed uses in the green wedge, which are embedded in the specification of the Rural Conservation Zone and in clause 51.02 of the State Planning Scheme.

As one submission put it, ‘C117 results in a de facto rezoning without the level of scrutiny required’. Council’s response to this criticism, in its Part B submission, was to say that ‘C117 does not alter the current zone or overlay provisions currently applying to land in the Green Wedge.’ Well no, it does not, and that is exactly the point made in the criticism, it is ‘de facto’. We might well ask the Council: if that is the case, what exactly is the point of C117? If it doesn’t change the allowed uses in any way, what does it achieve? This issue is at the core of community’s concerns, and none of  the Council’s responses address it directly.

In his opening, Dr Monaghan appeared to be mainly focussed on James Livingstone’s expert witness statement and the claim that he had been taken by surprise. He said that if he’d known that the WCA was calling a planner he would have advised Council to do the same.

One opinion offered by James was that 22.20 might cause a potential applicant for a permit to build a restaurant to ‘feel’ he had a chance of succeeding, even if his proposal could not satisfy 51.02. Monaghan criticized this statement on the grounds that James was not a psychologist and therefore not an expert in feelings! More substantially, he said that ‘any competent town planner’ would know that he had to look at 51.02. This throws the focus back on the conflict that would be created by C117. It also suggests that the Council is not concerned to make the Planning Scheme easy to understand by us all: it is assumed that you will hire a professional to interpret it.

An assumption built in to C117 is the decline of agriculture and its continuing decline. James suggested that this assumption ‘had not been adequately supported’. Monaghan’s response was that James was not an economist and that there is no ‘expert evidence before this panel to the contrary’, ie that agriculture is not in decline!

The final submission from the community was from Jeremy Loftus-Hills and occupied two absorbing hours.  Whereas the other objections to the amendment focused on the intent and the quality of the drafting, Jeremy investigated the process by which the Manningham Council arrived at C117. Using FOI and by dint of sheer persistence Jeremy was successful in extracting from Council reports of lead up work, notably including the three part report called the RADLUS, for Rural Areas Discretionary Land Uses Strategy, the final part of which became the background document in C117.

While Jeremy’s conclusions are quite trenchant  they are offered in the context of a thoughtful and extensive analysis of the surrounding issues, which could inform action into the future. We hope to publish some of his material soon. For now, this is the opening paragraph of Jeremy’s executive summary:

The internal policy basis adopted for the strategic review is an artificial construct which is unsuited to the task. It is little more than a tabulated synthesis of proposed actions and high level aspirations that cannot be considered sound or strategic in terms of the Act.

We could not have said it better ourselves.

The final Panel session belonged to the Council, for their final response.  This consisted of a long list of points, with many of them attacking the qualifications of James Livingstone, rather than his evidence. For example, that his experience was mostly at VCAT rather than before planning panels, that in the past twelve months he had done no strategic planning work so his evidence should be given less weight. This was an uninspiring end to the hearing, particularly following the substantial nature of what had gone before.

And with the hearing ended, it is over to the Panel, Mr Lester Townsend, to consider and make recommendations. Mr Townsend said that he would be occupied with other matters in the two weeks after the hearing, after which he would undertake site visits. Surprisingly one of them will be to the property of the submitter who was concerned about his future shed building, unaccompanied, but others will be accompanied.  On conclusion of the site visits he then may take 20 business days to prepare his report, which will go to both the Council and the Planning Minister.  The Council then has up to 28 days to consider the matter, after which the Panel’s report must be made public.

Possible timeline.

If the Council does not adopt the Panel’s recommendations it must give reasons. The minister makes the final decision.

Mr Townsend did ask Council whether they thought he should feel free to find  that the Local Policy part of C117, ie 22.20, was acceptable but not the Municipal Strategic Statement part, 21.07, and the Council answered yes, he should. This should probably not be taken as an indication of the likely outcome.

We just don’t know. During the hearing the Council were most engaged by James Livingstone’s evidence. Does this mean that an argument has more weight if it comes from a professional? And how important to the Panel are descriptions of the value to the Community of the Warrandyte and surrounding green wedge environment? And  what are Mr Townsend’s own views  about Melbourne’s green wedges? After all, this is essentially not a technical or legal issue, it concerns values.

We’ll find out in two months.

Correction
The original version of this post referred to ” Jamie Day’s proposal to build a caravan and camping park on Pound Bend”. Although the ‘use’ under which any permit would be granted is ‘caravan and camping park’, Jamie Day has explained that this misrepresents his proposal, which does not envisage caravans.