Chapel Lane: it’s amateur hour..

The violation of the green wedge at Chapel Lane, Doreen continues, despite Nillumbik councillors unanimously agreeing that the fill dumping there is ‘illegal’. How can that be?

This is a bad news story which has implications beyond the fill dumping fiasco. You would expect that upholding the planning scheme through enforcement would be regular business for the professionals in the Council’s planning department. They would have the required knowledge of the scheme and the options available to them, and while Councillors would no doubt be kept informed on significant issues by the CEO, their role would be restricted to high level oversight.

But the evidence of the Chapel Lane story is that under Cr Clarke and his faction the role and the capacity of the Council planning department has been reduced to the point where it does not do this.  The fill dumping in Chapel Lane only came to the attention of the wider public, ourselves and, it seems, the full Council in July when dumping started at 265 Chapel Lane, causing a public outcry on social media. But the activity had started two years previously at 130 Chapel Lane, and the Council was fully aware of it.

Earth Solutions Group, ESG, had their eye on Chapel Lane in 2015, when they applied to the previous Council for a ‘certificate of compliance’, confirming that the dumping was compliant with the planning scheme and did not require a permit. When the Council rejected the application ESG objected at VCAT and lost.

But the VCAT rejection contained a potential poison pill. It rejected the application on the grounds of insufficient evidence in relation to water flows, but determined that the fill placement was ‘ancillary to agriculture’, which would mean no permit was required in the Green Wedge Zone.

Subsequently, in 2016 and 2017, other green wedge Councils, notably Hume and Yarra Ranges, ran cases at VCAT which effectively overruled the ‘ancillary to agriculture’ determination. The placement of fill was determined to be a use in its own right, an innominate, undefined use, and therefore did require a planning permit. These cases established that fill could not be dumped in the green wedge without a permit, and established by way of precedent some guidelines as to how might a permit application be decided.

In 2018 ESG began dumping fill at 130 without a certificate and without a planning permit. Residents complained to Council, and Council officers visited the site, but to no avail: the dumping continued. Mayor Egan was aware of the activity, and and in January last year  promised a resident that she would  look into the matter, but did not follow up.

But the Mayor clearly recognized the importance of the matter, because she wrote to Minister Wynne in April last year, requesting  that he “introduce a particular provision which will allow councils to better prevent inappropriate dumping of large volumes of soil and fill”. She mentions that other peri-urban councils have the same issue, which suggests that she was aware of their relevant activities at VCAT.

But then, on July 17 last year, a Council officer emailed ESG informing them that the dumping could continue without a permit. This was apparently on the basis that ESG claimed that they had a hydrology report which would have satisfied the tribunal of 2015, the one that thought that fill dumping was ancillary to agriculture. This email was revealed by ESG’s lawyer at Council’s Future Nillumbik Committee meeting on 11 August, to general surprise. It appears that no copy of the hydrology report was lodged with Council, or has been yet. We do not know who made the decision to send this email, but Cr Dumaresq suggested that the full Council was in the dark.

Council’s attention was forced on this issue following the public outcry resulting from the start of dumping at 265. So what has been Council’s response? Run by Cr Clarke, the focus has been on amending the planning scheme. This is Illogical and obtuse. The violation continues to happen. The Council has agreed that the activity is illegal. They haven’t spelled out what this means, but clearly it is because they have come to accept that a planning permit is required, but the dumping is happening without one. What a capable and responsible Council would do next is enforcement. And ‘Council’ does not mean the councillors, it means the professional organization, and particularly the Planning Department.

The CEO is paid some $400,000 and the Director of Planning a substantial proportion of that. These are supposedly powerful executive positions, and ought to be proceeding with the same sorts of strategies as other green wedge councils in responding to the fill dumping issue. But, as became uncomfortably clear at the Council meeting on 25 August, the professional organization has been reduced to a cipher, whose job apparently is to produce pro-development recommendations to Council.

The meeting was dominated by Cr Clarke, with the faithful support of Mayor Egan and Crs Ranken and Ashton.  The first part of his motion was to request Council officers to “commence the preparation of a planning scheme amendment”. To reiterate, this is just deflection, and attempt to avoid responsibility. A Council amendment will take at least twelve months to be gazetted, and in any case the Council has already accepted that the activity is illegal without the amendment. The Council’s idea of a Ministerial amendment is unrealistic, and yet more deflection.

The other parts of the motion were to ‘reconfirm Council’s intention’ to apply to VCAT for a S114 enforcement  order , and to ‘determine its position in relation to (an) S120 interim enforcement order. This borders on the absurd. The dumping has been going on for two years. It was forced to the attention of the full Council by the public in mid-July, and no enforcement action has been taken yet. According to the Director of Planning no work has been done on collecting the evidence that would be needed in support of an application for an interim enforcement order.

For reasons unclear and unconvincing, meeting then moved to ‘in confidential’ to discuss the interim enforcement order proposition.

Cr Peter Clarke not standing for re-election

Cr Clarke recently announced that he would not be standing as a candidate in Wingrove Ward at the elections in October. This follows Cr Ranken’s recent resignation, apparently on the basis that he is no longer a resident of Nillumbik and is therefore unqualified.

The damage done by the current Council is a consequence of their pro-development, anti-regulation stance, a stance which has become starkly clear through a litany of offending actions, including supporting inappropriate development applications, attempting to sell off green reserves in Eltham, un-necessarily replacing the green wedge management plan with a lightweight, weaker one, but most significantly, reducing the capacity and autonomy of the professional organization.

It is therefore quite critical that we elect to the new Council independent Councillors with integrity, who understand the Shire and the real significance of its green wedge. All candidates will say they love the green wedge, so this is not a useful qualification.

Current Status at Chapel Lane

No dumping of fill has happened at either Chapel Lane site this week. 265 is shown as currently ‘closed’ on ESG’s site. A company called ‘Landfix’ lists 130, with dumping ‘by appointment. The Council’s web page designed to keep us updated does not explain why, but there are rumours of an agreed 14 day hiatus.

No application for an enforcement order under S114 of the Planning and Environment Act has been lodged with VCAT, despite the intention to do so having been ‘reconfirmed’ at the meeting of 25 August, over two weeks ago.

Previously on Chapel Lane

No need for a permit: Dump it in the Nillumbik Green Wedge

Nillumbik Council agrees on failure..