Chapel Lane is a quiet rural road running through land zoned GWZ, Green Wedge Zone, from Nutfield to Doreen. ESG’s gate to the property opened on Monday July 6, and on that day some 200 twenty tonne trucks ripped up that country lane. ESG expects to operate the site 6 days per week for three years – although we note from their website that the site is currently listed as ‘closed’.
This is not a new story, it’s a continuation. In 2015 ESG applied to the Nillumbik Council for a ‘certificate of compliance’ in relation to the placement of large quantities of fill just up the road, at 130 Chapel Lane. This appears to be a little used device established at 97N of the Planning and Environment Act. It provides that a Council may issue a certificate to confirm that a proposed activity complies with the Planning Scheme, and may proceed without a permit. It’s a permit you get when you don’t need a permit.
ESG’s application was apparently on the basis that the operation was to do with agriculture, which is a land use allowed without a permit in the GWZ. But the previous Council determined that the scale of the earthworks meant they were a use in their own right and that a permit was required, so declined to issue a certificate.
ESG appealed to VCAT. The hearing was held in December 2015 and the decision handed down in January. The outcome was in favour of the Council, that no certificate was to be issued, but the decision contained a problematic element.
Although the intent of the ‘works’ was obviously the disposal of fill, the VCAT Senior Member, Jeanette Rickards, determined that they were ancillary to agriculture, which is a Section 1, no permit required land use in the GWZ. This was despite the fact that the fill depth was 7 metres, that flat land was being covered, that no agriculture had been carried out on the property for years, that none was proposed, and that it was obvious this was not actually landfill, it was a fill disposal operation. You do not require 160,000 cubic metres of fill to rehabilitate an eroded gully.
Fortunately, we suppose, the Schedule to the GWZ in the Nillumbik Planning Scheme specifies that a permit is required for Earthworks which change the rate of flow or the discharge point of water across a property boundary. Council presented evidence, including a comment from Melbourne Water about ‘sub surface flows’, suggesting that a permit was required, and the Member agreed, saying in her deliberation clause
The information currently presented to us leaves us with a view that a permit for the ‘earthworks’ would be required under Schedule 1 to clause 35.04 as during the placement of fill on the land the flow of water or discharge rates could be affected. For this reason we have decided to direct that a certificate not be issued. (67)
So, the Tribunal has determined that this operation is ancillary to agriculture and on this basis could proceed without a permit, but that the operation being ‘earthworks’, a permit would in fact be required – based upon the evidence before her – because it was caught by Nillumbik’s Schedule to the GWZ.
In 2018 ESG commenced operations anyway, with no certificate and no permit. At least, we think it was ESG: it may have been a company called landfix. Recently ESG closed the dump site at 130 and opened for business at 265 Chapel Lane. Like 130 it is zoned GWZ. Like 130, there are no signs of agriculture or evidence of plans to engage in agriculture. There was talk of ‘Pre planning’ meetings with the Council, but requests of the Council for information about these, if indeed they took place, were denied on the basis that they were confidential.
In the face of this profound upset to their part of the green wedge, surrounding residents protested, but were waved off by ESG and its lawyers.
The story so far:
Council rejected ESG’s request for a compliance certificate for 130;
ESG appealed that decision at VCAT, unsuccessfully, in January 2016.
In 2018, ESG commenced dumping fill at 130, without either a 97N certificate or a permit.
Last month, ESG, transferred their fill dumping to 265, again with no permit.
Dumping operations have ceased at the time of writing, probably as a result of community objections. The site at 265 is still listed on ESG’s website, but it is shown as ‘closed’.
What does the Planning Scheme say?
Ideally, any property owner could consult the Planning Scheme and discover the legality of any proposed land use or activity on the land. But its size and complexity, as well as its gaps and generalities and the way in which it is administered means that too often issues end up being adjudicated, if not always finally resolved, at VCAT.
As we have seen, in ESG v Nillumbik a Senior VCAT member determined that the disposal of a large volume of fill at 130 Chapel Lane was ancillary to agriculture, when based on the purposes of the green wedge it should have been disallowed. However, VCAT effectively superseded this interpretation within one month, with a ‘red dot’ case. A red dot case is one which VCAT identifies as a reference case in respect of a particular issue.
The case was Calleja v Hume, decided on 23 February 2016. In 2015 Hume City Council rejected an application to place fill on a 10 ha property zoned GWZ in Keilor, in the Sunbury green wedge.
The property was a disused quarry which had previously been remediated, and the proposal was to place 230,000 cubic metres of fill on the site over a period of five years. This tribunal recognized that the principal intent of the proposal was ‘to accommodate the disposal of clean fill’, which they said was a land use in its own right, and not ancillary to any other use. Since this was not and is not a use specifically listed under the GWZ it is an ‘innominate use’, and only allowed subject to a permit.
The tribunal also recognized an intent to ‘reshape the land, a form of earthworks’. Although not a land use, ‘earthworks’ is defined in the Planning Provisions, and Hume’s GWZ schedule includes the condition that a permit is required for
Earthworks which involve the receipt, importation, stockpiling or placement of more than 100 cubic metres of fill
The intent of this condition is to allow farmers to use reasonable amounts of fill to maintain and improve their property without a permit. Note that the Nillumbik’s aborted amendment C81 sought to achieve this objective by limiting earthworks to no more than 1 metre of cut and fill without a permit on land subject to a Significant Landscape Overlay – which would have applied to both 130 and 265 Chapel Lane.
Having defined the land use as only allowed subject to a permit, the tribunal declined to order the issue of a permit because of essentially two considerations:
the effect of the fill dumping on the landform and the landscape character.
The loss of amenity for particular neighbours in the course of the project.
The applicant did claim that the placement of fill would improve the agricultural capability of the land, but this was rejected as ‘piecemeal’ because no specific agricultural use was proposed or even described. Note that in ESG v Nillumbik not even the applicant submitted any claims in relation to any sort of agriculture.
But that is not the final word from VCAT on the issue of the disposal of fill in green wedges. A few months after the Calleja v Hume hearing, the same VCAT members heard another fill disposal case: Creative Landfill v Hume. The land was 103 ha, zoned GWZ in Yuroke, and it was proposed to place 560,000 cubic metres of fill on it over three years, 200 trucks per day, six days per week.
The intent of the operation was the same as with Calleja: the disposal of a large volume of fill in the GWZ. There was no doubt the land use was the disposal of fill, so a permit was required, but in this case the tribunal granted the permit. It found that landscape character would not be impaired and in terms of a range of other factors including habitat values, erosion, neighbourhood amenity and traffic the proposal was acceptable.
The tribunal also observed that given the strategic significance of the disposal of fill to urban development, providing the impacts on the GWZ were acceptable that this was a factor in favour of the proposal.
One other case is worth mentioning, because in this case the placement of fill was deemed to be an ancillary use. The case was brought about not by a dispute, but because the Shire of Yarra Ranges was uncertain how to assess an application involving the disposal of fill, and launched a test case under section 149A of the Planning and Environment Act to get an interpretation of their own Planning Scheme.
The case, Yarra Ranges v Bibiano, was heard by a Deputy VCAT President, and was designated a Red Dot case, not modifying but extending Calleja. The land was a 6.874 ha property at 189 Belgrave Hallam Road, Belgrave South, zoned GWZ. It was used as a holiday home and hobby farm. 1400 truckloads of fill had been placed on the land.
What distinguished this case was the intent of the operation. It was initiated by the landowner to address problems to do with drainage and access to parts of his land. He received no remuneration for accepting the fill. So although the Council thought that at this scale the fill placement would have constituted a separate use of the land, the tribunal found that
it was found that the deposit of clean fill on the land was ancillary to the dominant use of the land as a holiday house and hobby farm, and did not require a separate ‘use’ permit.
VCAT Deputy President Mark Dwyer also observed that
a more sophisticated policy response is desirable from the relevant regulators to address any broader problems in the disposal of clean fill, rather than the use of individual VCAT declaration proceedings.
It is not only VCAT which sees a problem with the way the Planning Schemes are operating in this area – so do some local Councils. In 2018 the Yarra Ranges Council convened a ‘Round Table Discussion on the topic ‘Clean Fill in Green Wedge Areas’. There was a general consensus that the State Government should be lobbied to take appropriate policy action to effectively regulate the disposal of fill in the green wedges.
Subsequently, in April 2019 Nillumbik Mayor Karen Egan wrote to Minister Wynne recommending that “The Minister should make immediate and particular reforms to the Victoria Planning Provisions, to introduce a particular provision which will allow councils to better prevent inappropriate dumping of large volumes of soil and fill”.
The Minister’s did respond by letter in June 2019, saying that a review of the issue had commenced and was expected to be complete in 2019. Glaciers typically flow more than one metre in a week.
Notwithstanding that the Planning Scheme needs work, it is the job of Councils to play their part in upholding the existing scheme and VCAT’s interpretations. It would seem obvious that the case of Chapel Lane is close to Calleja v Hume and Creative Landfill v Hume, in that the intent of the operation was to dispose of fill, and that therefore it is a separate and not an ancillary use, and may only be carried out subject to a permit. The ESG v Nillumbik case was surely swept aside by the subsequent red dot and other cases.
So, what is the problem with 265 Chapel Lane?
The disposal of fill in Chapel Lane is an offence against our green wedge, and not only because of its impact on the amenity of surrounding residents. This program is not only not agriculture, it is anti-agriculture. It appears that subsoil is being dumped over previous grazing land, and creeks are near completely filled in. How does this sit with the State’s recognition of the importance of agricultural land around Melbourne?
There is already visual evidence of pollutants from runoff in creeks on surrounding properties, with the certain impacts on sensitive vegetation and indigenous fauna, including frogs and turtles and predatory birds: wedge tailed eagles, owls, kestrels and tawny frogmouths.
The Role of the Council
VCAT cases subsequent to ESG v Nillumbik clearly provide a basis to classify this dumping as an innominate use requiring a permit. Nillumbik Council could halt works immediately by applying for an interim enforcement order against ESG or the land owner under section 114 of the Planning and Environment Act. They should have done this when first they were made aware of the activity. Why haven’t they?
The fill that is being disposed of is generated by urban developers, and a lot of money is involved. We’re not suggesting that’s a factor, but we just don’t understand, because no-one in the Shire likes what is happening. Except the owners of the target land, who like it because they get paid. And the developers, because they get rid of their fill. Who else?
The July Council meeting threw light, as well as some heat on the issue. Cr Clarke says he thinks the problem is entirely with the Planning Scheme, and moved a motion asking the Minister to do something. Cr Brooker suggested that this was a move aimed at avoiding responsibility, Cr Perkins observed that Mayor Egan had already written to the Minister on this topic, last year, so what was the point?
The Executive Manager, Planning answered questions at the meeting, and revealed what appears to be an extra-ordinarily weak approach on the part of Council:
It is known that ESG commissioned a hydrological survey on 130 Chapel Lane which said there was no problem with boundary surface flows, but Council hasn’t seen it, even though it was the apparent basis upon which ESG proceeded.
ESG agreed to halt dumping for 14 days from late July, to allow the Council to investigate. Although ESG’s website currently lists the Doreen site as ‘closed’, we believe dumping has continued, albeit at a reduced volume.
Legal advice was requested upon whether there were grounds to enforce a permit requirement on ESG, and the answer was ‘need more information’. This sort of judgement surely should be bread and butter for council planning officers.
If after dumping is complete (!), property boundary flows at 130 are problematic enforcement action can take place then. Is that thought to be protecting the green wedge?
Cr Perkins moved a motion which focused on what the Council could actually do itself, which Cr Clarke attempted to defenestrate with an amendment of his own. This failed, being voted down by Crs Perkins, Brooker and Dumaresq, with the additional and vital support of Cr Ashton. Cr Perkins’ motion, which was then passed unanimously, is as follows:
1. That Council officers prepare a report for the August Future Nillumbik Committee on the commercial dumping of soil at 265 and 130 Chapel Lane.
2. The report will detail the history of planning approvals, requests and meetings with officers including the advice to applicants.
3. Council does not support this use within our Green Wedge and requires an explanation to Council and community as to why a permit is not required.
4. Council further requests explanations as to why VCAT decisions on soil dumping in a Green Wedge are not applicable in these circumstances.
5. Council immediately request the Planning Minister to introduce into the schedule for Green Wedge Zone and Rural Conservation Zone a 100 cubic metre limit of clean fill.
Cr Perkins said his motion was in part aimed at making the whole Council and the community aware of the situation. It does appear that the Council organization has been hollowed out, and that this situation is being managed by a subset of Councillors.
The August Future Nillumbik Committee Meeting is scheduled for 7 pm next Tuesday, 11th. Watch this space.