by don | Jun 29, 2018 | News
There are valid criticisms which could be made about the process which the Nillumbik Council has initiated, however we should not ignore it. Nillumbik residents are being asked to do two things right now, and we encourage you to engage.
Vote for an Expert
There will be a number of experts appointed to present to the upcoming Citizens Panel which is supposed to come up with a vision for the Green Wedge. Various names have been submitted by community groups and residents are now being asked to vote on which of these they think should be chosen.
We urge you to cast a vote, and while this is not an exhaustive list we have identified the names of some experts who may be in tune with the WCA’s charter to protect and enhance the Green Wedge. For your consideration, these are:
Environment Expert
Ian Penrose
Kahn Franke
Lynlee Tozer
Cam Beardsell
Michael Buxton
Randall Robinson
David Cameron
Brian Walters
David Lindenmeyer
Richard Rancis
Economic Expert
Bronwyn South
Geoff Mosley
Daryl Brooke
Social Expert
Helen Corney
Ian Penrose
Hugh MacKay
Regulatory Expert
Michael Buxton
Trevor Budge
Dr Bruce Lindsay
Nicole Rivers
Geoff Wright
To vote follow this link. You are asked to vote for one expert only in each category. Voting closes 6 July.
Step Up for the Panel
Council has sent invitations to 10,000 Nillumbik households, calling for candidates for the Citizen Panel. The panel will be selected from those who nominate, supposedly so that it will be representative of the Shire’s demographic makeup, with a significant weighting given to rural landholders.
Panel members must be available to attend meetings on all of the following dates:
Thursday 9 August 6-9 pm
Saturday 18 August 9 am-5 pm
Saturday 1 September 9 am -5 pm
Saturday 15 Sept 9 am – 5 pm
Saturday 13 Oct 9 am – 5 pm
Saturday 20 Oct 9 am – 5 pm
We encourage you to nominate if you are able to attend these meetings. The Nillumbik Green Wedge is at stake, and we should aim to make a positive contribution towards promoting its best interests.
Don’t worry if you have lost your invitation, or even if you suspect it has been lost in the mail: just follow this link to nominate. Nominations close midnight 17 July.
If anyone wanting to nominate would like support the WCA will be happy to provide information and advice as required.
For more information go to the Council website here.
by don | Jun 12, 2018 | News
Green Wedge Councils are required by the State Government to prepare a Green Wedge Management Plan and to review it periodically. Nillumbik’s GWMP is in two parts, the first containing descriptive and background information and the second focussing on actual management, and containing a list of actions for the council to undertake. Both parts are available as light reading on the Council’s website.
There are 113 actions listed on the GWMP, dating from 2011 when the plan was created. In 2015 the then Council commissioned Glossop Town Planners to review the GWMP, which they did with the help of Council Officers and a committee which included Councillors and community members. It reviewed the entire list of actions, acknowledging those completed, assessing some as impractical and reconfiguring others, in short bringing the GWMP up to date. This report was received by Council but never made public, and nor was the GWMP itself updated to reflect the review. If you’re interested you can read the Glossop report here.
Earlier this year the current Council launched its own GWMP review. The initial and a major component of the project is a community consultation phase, including a randomly selected community panel, meetings with ‘landowners’, a community survey and a several community group workshops. A timeline for the project is here.
The Green Wedges are always under threat from development, but there are signs that the threats are increasing, including from our own Council, as witnessed by their actions in relation to 2 Pigeon Bank Road, North Warrandyte, and their new draft plan, which manages to avoid any reference to their own Green Wedge. The Green Wedges are protected by the planning provisions, not by the GWMPs. Nevertheless, it is possible that a GWMP review could give rise to proposed planning scheme amendments which would then be considered at State Government level.
So if we want Green Wedge protections to be strengthened rather than eroded, we should make sure our thoughts and views are known by participating in the Council’s community consultation process.
- First, respond to the Council’s online survey.
- Second, attend a Council consultation session. There’s a ‘Workshop’ scheduled for next Monday, 18th June at the Eltham Community Centre. It’s from 10 am till 12pm, but attend if you can – if there are too few registrations it may not proceed. For details and to register go here.
- And last, when your household receives its invitation to join the Community Panel, consider putting yourself forward.
by don | May 31, 2018 | News
It is clear from clause 57 of the State Planning Provisions that brothels are a prohibited use in the Green Wedges. No argument is possible. Residential hotels are also a prohibited use, but that’s a maybe – argument is possible. A permit may be granted if the application satisfies the ‘in conjunction with’ condition of clause 57. Manningham Council and others thought they knew what this clause meant when they objected to an application to build a 49-room hotel in Brumbys Road, South Warrandyte – along with a function room, a winery and a vineyard.
The applicant took his proposal to VCAT and the hearing took place in January 2018 before Senior Member Geoffrey Code and Member Joel Templar. Their decision to reject the application was published in March – but their decision was not based on a failure to meet the ‘in conjunction with’ condition.
As noted in the Decision, the Council and others contended that the hotel did not meet the condition, which is that on green wedge land a residential hotel is a prohibited use unless the hotel is to “be used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry or Winery”.
The Members took the view that due to its proposed small size and design the vineyard did not qualify as agriculture, but rather was a landscaped setting for the residential hotel. So the hotel could not be ‘in conjunction with’ the vineyard. But what about the winery?
Clause 74 of the Planning Provisions defines a winery as follows:
Land used to display, and sell by retail, vineyard products, in association with the growing of grape vines and the manufacture of the vineyard products. It may include the preparation and sale of food and drink for consumption on the premises.
The Members determined that a winery was not required to source grapes or fruit mainly from its own vineyard, or at all. Interestingly, it also found that there was no firm requirement for a winery to even make the wine, that it was sufficient for a ‘small winery’ to just mature and bottle wine.
They also determined that the proposed winery was of a scale sufficient to make it more than mere ‘window dressing’ to justify the hotel, based on their judgement of its physical size. So they concluded that the winery was a valid ‘primary use’, if the hotel was to be the ‘secondary use’.
So then the issue was the ‘in conjunction with’ question: was the hotel to operate ‘in conjunction with’ the winery? Clause 64.02 of the Planning Provisions says that for the condition to be satisfied
- there must be an essential association between the two uses; and
the use must have a genuine, close and continuing functional relationship in its operation with the other use.
The Members found that the first condition was satisfied because
- the hotel would benefit from the aesthetic vineyard setting,
that the winery would benefit from the cellar door traffic generated by the hotel, and that
both would benefit from staff sharing.
Note that having characterized the vineyard as not agriculture but as a landscaped setting for the hotel, they were nevertheless able to use the vineyard setting to, in part, justify the hotel, even though it was the winery that was the primary use.
They also found that the second condition was satisfied because the winery was a bona fide ‘separate use’. The Council had submitted that the winery was dwarfed by the hotel, but the Members rejected this on the grounds that the winery was substantial and that clause 64.02 did not recognize ‘the concept of relative economic return’. This was a surprise to some, who apparently wrongly assumed that some sort of size relationship was implicit.
The Members said that had they approved the application they would have considered including as a condition that the continued operation of the hotel would be contingent on the continuing operation of the winery and vineyard.
Thus the application was determined to have satisfied the ‘in conjunction with’ test – but it failed on other grounds. The building was considered too large and high and close to the road. Its impact was considered in some depth, resulting in comments such as ‘it has not been designed in a site responsive manner to respond to the constraints of the site and the site’s context’. There was also an issue with a habitat corridor, and the impact of traffic was a significant factor.
It has been said that VCAT decisions are unpredictable. What is certainly the case is that the Planning Provisions are complex and can appear vague and open to interpretation. Particular points to note from this decision:
A winery needs only to mature and bottle wine. There is no requirement that the wine be made on the premises, or that there be a vineyard adjoining. To be a valid ‘primary use’ it needs only to be ‘of a material size and scale’.
It is not necessary to relate the scale of the hotel, as the secondary use, to the scale of the winery, the primary use.
If there is a vineyard, even if it is essentially a garden and not bona fide ‘agriculture’, its aesthetic qualities can help satisfy the in conjunction test between a winery and a hotel.
Given the current focus in some quarters on the encouragement of tourist-related businesses in the Green Wedges this case could be seen as potentially concerning. It would seem that a developer can build a residential hotel in the green wedge if the proposal includes a small winery – providing of course that the proposal is for a design which is ‘site responsive’ and satisfies the permit conditions, associated with traffic, fire safety and so on.
Most people would accept the need to promote tourism in the green wedges – after all, they’re an asset of Melbourne and meant to be enjoyed by visitors. But how is tourist development to be controlled so that it does not degrade the green wedge? It is difficult to see how including a small winery in a proposal to build a residential hotel necessarily makes it compatible with a Green Wedge.
Currently there are pressures to relax the restrictions on commercial tourism. We must ensure that any changes are clear and rule out inappropriate developments. The place for residential hotels is in the townships.
You can read the VCAT Decision here.
by don | May 23, 2018 | Forum
Mebourne’s green wedges exist because far sighted politicians created the legal framework which protects them from inappropriate development. This framework is regularly amended in response to changing circumstances such as evolving bushfire safety requirements, new studies of particular environmental values, or in order to resolve inconsistency or to make administration simpler.
A poorly designed or badly motivated amendment has the potential to allow the degradation of our green wedges, so it is vital that amendments be transparently and effectively assessed for their likely effect. A case in point may be C117.
The core of the legal framework is a hierarchy of planning provisions, from State to Local. C117 is an amendment being proposed by the Manningham Council to apply to the Manningham Green Wedge only – but the issues it addresses and creates are not unique to Manningham. They apply to all green wedges, so we all need to pay attention.
C117 was preceded by a ‘Rural Land Uses Position Paper’, which is incorporated into the proposed amendment. The thrust of this report, and the amendment, is to recognize the decline of traditional agriculture in the Manningham Green Wedge, and to see the problem in terms of the ‘limited commercial development activity within the RCZ in recent years’, and to encourage tourism development.
The issue of tourism development is already a major issue in areas such as the Mornington Peninsula Green Wedge. Here proposals for major projects are already the subject of planning permit applications, and the existing planning scheme provisions are proving not strong enough to prevent the approval of major built developments that destroy the very rural values that are fundamental to the purpose of the Green Wedges.
The proposed C117 planning scheme amendment will, if allowed to proceed in its current form, significantly increase the risk of opening up the Manningham Green Wedge to major urban built form development. Also of major concern is the potential for the proliferation of business and tourist development across the municipality resulting in the domination of buildings and associated infrastructure and the urbanisation of the Green Wedge.
One item interest is the suggestion of ‘cluster tourism development in the Green Wedge’. The term is not explicitly defined in the position paper, but it refers to what it sees as an existing instance:
There is a strong existing tourism cluster around the Ringwood-Warrandyte Road between Warrandyte and Warrandyte South. Opportunities exist to concentrate tourism land uses around this cluster.
This area in South Warrandyte is not a good advertisement for planning, and in the absence of any definition of a tourist cluster in the amendment it is hard not to see it merely as a way of rationalizing the relaxation of green wedge controls.
C117 was on exhibition until 16 April and the WCA put in a submission, written by Alan Thatcher, that details our concerns. You can read it here. The next step is for the Manningham Council to consider the community submissions, and if the objections cannot be satisfactorily addressed ask the Minister for Planning to convene a panel to consider the submissions.
The planning panel process allows for further submissions and at the end of the process the panel presents recommendations to the Planning Minister.
by don | Apr 9, 2018 | News
A proposal to build a hotel and grappa distillery at 46-52 Brumby’s Road South Warrandyte has been rejected by VCAT. This time the site is in the Manningham portion of the Green Wedge.
The proposed development was to build, on a 2.35 ha site, a 49 room hotel – revised down from the original 76 room proposal – a grappa distillery, a restaurant/event space to accommodate 150 patrons, other function areas and associated parking – and almost as an afterthought, the ‘agricultural‘ activity: a small vineyard and some citrus trees. While the Planning Scheme under Clause 57 does contemplate allowing a residential hotel or restaurant within the Green Wedge, such developments are supposed to be in conjunction with agricultural uses, and to have genuine, close and continuing operational relationship with an agricultural use.
The land in question has no existing agricultural use and the proposed plantings represented a very small portion of the site. Both the Manningham council and objectors argued that the proposal did not meet the requirements of Clause 57, along with other serious objections. The Tribunal rejected this argument, but dismissed the application on other grounds. The Tribunal did make it clear that there was no viable agricultural use of the land now or in the proposal:
- Para. 21 …the proposed layout of building and works confirms for us that the vineyard and orchard is not for the purpose of agriculture.
- Para 23. We find the vineyard and orchard is primarily a garden or landscaped setting for the Residential hotel.
However, it regarded the proposed winery/distillery as a recognised, bona fide agricultural use, even if product for processing was brought in, providing what it saw as the necessary functional relationship with the hotel.,Having reached this conclusion the Tribunal then went on to reject the proposal on the grounds of inappropriate size and build, risk to life in the event of bushfire, and inability of the road infrastructure to meet current and future traffic volumes.
Objectors and the Council will no doubt be puzzled by the Tribunal’s reading of Clause 57 of the Planning Scheme, but nonetheless pleased that other arguments against the proposal were accepted.
Interestingly, the owners of this site also own the adjacent Olivigna restaurant. Olivigna already imposes traffic and access stress in the area, as VCAT noted during a site visit. Furthermore, the owners some time ago applied for a permit to install a helipad for the restaurant. This met fierce resistance from residents in the area. Over the years the owners of Olivigna have applied for multiple development permits. The original application, associated with the olive grove, started with a limited trading and tasting permit to operate between 11.00 am and 3.00 pm on weekends only.
Clearly, had the owners, at the outset, applied for a development embracing two large restaurants, multiple function spaces, a distillery and associated parking, a hotel and helipad this would have been rejected outright as ridiculous overdevelopment. Yet, bit by bit this is what they have attempted to build. Fortunately, the residents and community have been alert to the risks such incremental development poses for the integrity of Melbourne’s Green Wedges.
Find the WCA submission here
Find the VCAT decision here
by don | Apr 3, 2018 | News
Like 2 Pigeon Bank Road, 14 Barreenong Road Cottles Bridge is in the Nillumbik Green Wedge in the Rural Conservation Zone. Unlike Pigeon Bank this case was taken all the way to VCAT by the applicant, which issued its ruling on March 16: a permit was not granted.
The application to build a dwelling and outbuildings was made to council on 26 July 2016. Council Officers considered the application and recommended against the issue of a permit. But Deputy Mayor Karen Egan ‘called in’ the application with a view to ignoring the Council Officers’ recommendation and granting the permit. However, at the Future Nillumbik Committee meeting on September 12 2017, after some 35 objections were received from residents, the Council ended up voting 4 votes to 2 against a permit, with only Karen Egan and Councillor Peter Perkins voting in favour.
Inappropriate planning applications can be conceived in ignorance of a proper identification of the relevant parts of the law, or with a view to deliberately pushing the boundaries based on commercial self-interest. A VCAT hearing is the place where disputed applications meet the law of the land. To read the ruling is to gain an appreciation of how essentially robust is the underlying Green Wedge protection machinery.
An interesting issue in this application was the lot size. At 0.76 hectares it is ‘undersized’, as was 2 Pigeon Bank Road, at 5 hectares. The minimum lot size, specified in ‘Schedule 3 to the Rural Conservation Zone’ in the Nillumbik Planning Scheme is 8 hectares. But this is in fact merely the smallest size acceptable in a new subdivision, and does not directly preclude a successful application to build a dwelling. What was critical however, in the opinion of the VCAT Member, Mr Peter Gaschk was the proportion of the property which would be affected by the development. To quote from the Decision:
- “Up to 50% of the site’s existing vegetation (0.38ha) will be removed/altered to provide for the dwelling, free standing garage, septic system, effluent disposal area, water tanks and driveways. This will in my view have a greater visual and environmental impact on the site’s physical setting and its surrounds due to its small size, than if it were a larger parcel of land with a similar scale of residential development. I find this outcome is contrary to the conservation, landscape and environmental purposes of the RCZ3 and relevant planning policies associated with Green Wedge area”
The law protecting the green wedges is extensive and in many cases requires judgement in its application. This Decision refers to judgements made in four previous relevant VCAT cases, notably one concerning Overbank Road, Eltham. It listed the following significant statements from Member Mr John Bennett‘s Decision in that case:
- Green wedge land is to be protected from use and development that would diminish its environmental, conservation and landscape values.
- Residential development is to be contained within existing urban zones on land within the Urban Growth Boundary.
- Residential use within non-urban areas is discouraged.
- Development on small rural lots below the zone minimum is to be limited, unless exceptional circumstances exist.
- Continued development of dwellings in green wedge areas undermines the values and characteristics of the green wedge/non urban areas.
- Land use changes must not have an adverse effect on landscape or strategic environmental values of the land.
This case differed from the 2 Pigeon Bank case in that the Nillumbik Council did not end up overturning their Officers’ rejection of the permit, which resulted in the applicant’s appeal to VCAT. But what should be noted is the importance of community involvement, in this case in the form of community objections to the application and particularly the involvement of Friends of Nillumbik and Mr Bill Lord’s appearance at VCAT.
You can read the VCAT Decision here.
by don | Jan 2, 2018 | News, Pigeon Bank
On 22/12 Phillip Mannerheim Holdings Pty Ltd and the Nillumbik Council agreed to VCAT making an order that the Council’s decision to issue a permit for the proposed development at 2 Pigeon Bank Road be set aside and instead that no permit be issued. The CFA has also now consented to this proposed order, and we expect that VCAT will make the consent order in due course. This means that we have won this battle before the VCAT hearing.
While much of our focus in preparing to stop this inappropriate development was on the proposal itself and the developer, Phillip Mannerheim Holdings Pty Ltd, in the bigger picture the issue is with the current Nillumbik Shire Council. It was the Council which approved the application, at its ‘Future Nillumbik Committee’ meeting on March 14, overriding the recommendation of their own Senior Statutory Planner, thus leading the developer down an expensive and indefensible path. Quite remarkably not one ground for granting the permit was given at the meeting. Councillors who voted in favour of the failed development were Peter Perkins, Bruce Ranken, Jane Ashton, Karen Egan and Peter Clarke. Only John Dumaresq and Grant Brooker voted against.
It is apparent that many in our community thought the development should have been allowed. Some characterized the anti side as self-interested, as in ‘you people have cut down trees to build your houses, and now you don’t want others to do what you have already done’. While it is true that the first objector was a neighbour whose outlook would have been affected, the strength of the protest against the development was based on the commitment of many to the protection of the Nillumbik Green Wedge and to Melbourne’s green wedges in general – as is obvious from the involvement of the Warrandyte Community Association, the GreenWedge Protection Group and the Friends of Nillumbik.
It is in the nature of ‘the market’ that our green wedges will be continually under threat from developments of various kinds. Sometimes these threats involve political influence at State Government level in relation to zoning issues, and sometimes they will be evident as single lot proposals like 2 Pigeon Bank Road. Because the administrative machinery for maintaining our green wedges is complex, depending upon both State and local governments and containing multiple elements, including legislation, Melbourne 2030, Green Wedge Management Plans, Local Policy Frameworks and so on, the long term protection of them is complex.
As has been reported in this newsletter and our website, the current Nillumbik Council is conducting a ‘Nillumbik Planning Scheme Review’. The substantive reason for having this review is not clear from what has been published, and given the Council’s clear willingness to ignore the current green wedge protection regime we must closely watch the progress of this project.
Often under-represented in argument about the current development is the case for the green wedges, possibly because it seems so obvious. Unfortunately it is not obvious to everyone, so the case must be continually made. We should be articulating it unabashedly at every worthwhile opportunity, including to our councillors, and especially in the lead-up to the next Council elections.
So, a good news story, and a credit to the many who contributed in various ways. But the big issue is not settled. Please pass this email on to friends and supporters of Melbourne’s green wedges. We’ll continue to keep you in the loop.
by don | Dec 20, 2017 | News, Pigeon Bank
Last week, on December 12, VCAT rejected the request by the developer to defer the VCAT hearing, now set to run for 4 days starting January 23.
The story so far: at its meeting on 14th March the Nillumbik Council overturned the decision by its own officers to disallow this inappropriate residential development in the Green Wedge. Following objections by neighbours a VCAT hearing date was set for September 25, the objectors being joined by the Warrandyte Community Association, the Friends of Nillumbik and the Greenwedge Protection Group.
Then the developer, Phillip Mannaheim Holdings Pty Ltd applied to the Supreme Court against the objectors’ right to appeal. The Supreme Court hearing date was set for June 30, but on June 28 this hearing was deferred, but January 22 was established as the VCAT hearing date, should it stand. On November 2 the Supreme Court upheld our right to object.
Next, the developer applied to have the VCAT hearing date deferred, on various grounds to do with time lost due to his own Supreme Court application and the availability of his experts. Nillumbik Council supported this request, of course, but the objectors did not, requesting that the hearing be held as scheduled.
Last week, on December 12, following a hearing on December 6, VCAT announced that the hearing would proceed on the original week, albeit shortened by agreement from the originally scheduled 5 days to 4, starting on January 23.
At the hearing the VCAT member agreed that although the date for submitting amended plans had passed it would extend that date to December 22 – although it noted that ‘no in principle changes’ had ‘been identified yet’. The VCAT Member also noted that if the applicant was not going to be ready on the date it could always withdraw the application and re apply in the future.
You should know that all of these procedural steps and delays requested by the developer are demanding of campaign volunteer time and money, and both are short. So please, chip in if you haven’t, chip in again if you can, and pass this email on to friends and supporters of Melbourne’s green wedges.
by don | Nov 23, 2017 | News
At its meeting on 29th August the Nillumbik Council voted, without discussion, to spend $345,000 on an exercise called the ‘Nillumbik Planning Scheme Review’. They say that this project ‘seeks an improved and holistic approach to strategic planning, supported by important actions such as reviewing the Nillumbik Planning Scheme to make it easier and clearer for all stakeholders, and reviewing the impacts of the Green Wedge Management Plan on the Shire’s community.’
Leaving aside that use of the word ‘holistic’ nearly always intends to obfuscate, who would argue against clarity for ‘all stake holders’? As to reviewing the impacts of the Green Wedge Management Plan on the Shire’s community, we might be interested in the reasons why this is worth doing. But the description of the project from the Council meeting agenda does not enlighten us.
This project is being commissioned, presumably on our behalf, by the Council who overturned their own officers’ recommendations that the development application for 2 Pigeon Bank Road be rejected. The Council officers found that the application was inconsistent with the current Green Wedge Management Plan, and you can see a summary of their reasoning here. In rejecting their officers’ advice the Council offered no arguments at all.
The Council proposes a citizens’ jury to resolve conflict over management of the Green Wedge. It says that ‘Typically, the issue that the jury are asked to consider will be one that has an effect across the community and where a representative and democratic decision-making process is required.’ It is disappointing that such an important change in governance could be proposed with so little background, particularly since on its face it seems inappropriate. The Nillumbik Green Wedge is not a resource which is owned by local landowners. Along with other green wedges it is a vital part of our liveable city, and its protection against creeping destruction should be the concern of us all. The 2 Pigeon Bank application is a case in point. Pigeon Bank Road is on the Urban Growth Boundary which separates the township of North Warrandyte from the Nillumbik Green Wedge. 2 Pigeon Bank is in the Green Wedge, in the RCZ, or Rural Conservation Zone, and Green Wedge standards must be maintained, or over time the lungs of Melbourne will shrink to nothing.
This is a technical and big picture matter, and not a matter properly handled by self-interested local land owners.
by don | Nov 8, 2017 | Pigeon Bank
The Supreme Court has upheld the right of objectors and community groups to appeal to VCAT against the development of 2 Pigeon Bank Road, North Warrandyte. Although our right to object to the development had been accepted by VCAT for hearing in January the developer challenged that right in the Supreme Court on the purely technical grounds that the objection by neighbour and WCA member Kim Cope was not valid because it did not contain the words ‘objection’ – even though Kim’s letter was clearly objecting to the development. On Thursday 2nd of November the Court released the decision of Justice Bell resoundingly endorsing the validity of the objection. The judgement is worth reading as a positive story about our legal system and its duty to be accessible. You can read it here. And you can read the media release by the WCA and Environmental Justice Australia here. This means that our challenge will go ahead at a VCAT hearing scheduled for January 22nd.
Even with rates discounted by our supportive legal team and other necessary experts this will be a costly exercise. This challenge is vital to stop developmental erosion of the Nillumbik Green Wedge. If you have not already donated now is the time. And if you already have, more is needed.
by don | Nov 8, 2017 | Pigeon Bank
Media Release by WCA and Environmental Justice Australia,
November 2nd 2017
A decision of the Supreme Court today confirms the ability of concerned Victorians to object to inappropriate developments and emphasises the importance of minimising technicality and the value of community participation in the planning system.
The Warrandyte Community Association and Environmental Justice Australia welcomed the decision.
“The Warrandyte Community Association welcomes the Supreme Court’s confirmation that everyday people can object to inappropriate developments in their community without their objections needing to pass specific legalistic hurdles,” said WCA spokesperson Jonathan Upson.
“Now that the Supreme Court has enabled the VCAT appeal to proceed, the WCA and other parties look forward to the opportunity to argue that clear-felling 740 trees to build one house on a ridgeline with nice views directly contradicts the Nillumbik and State Government planning schemes and requirements.
“The developer’s lawyers made it clear that if we were to fight this case and lose, they would seek an order for their legal costs against us. Therefore, I would like to acknowledge the courage of the three Community Associations – the WCA, Friends of Nillumbik and Green Wedge Protection Group – and several individuals who were parties to this case.
“The WCA, on behalf of the other parties, would like to sincerely thank Environmental Justice Australia for their invaluable assistance in prosecuting the Supreme Court case on our behalf.”
Environmental Justice Australia said the decision affirmed the importance of community participation in planning.
“Justice Bell’s decision represents a victory for common sense and fairness,” said Environmental Justice Australia CEO Brendan Sydes.
“The court’s decision emphasises the importance of minimising technicality and the value of community participation in our planning system.
“EJA is pleased to have been able to support the community in ensuring they can have a say about the important planning and environment issues raised by this permit application.”
Media enquiries:
Jonathan Upson, Warrandyte Community Association, 0400 501 676
Josh Meadows, Environmental Justice Australia, 0439 342 992
by don | Jul 20, 2017 | Pigeon Bank
The Supreme Court has now set a date to hear the developer’s application for leave to appeal the VCAT decision to accept objectors.
If the Court grants leave to appeal then it is likely that the Court will immediately begin hearing the case. The date for the Supreme Court hearing is set for September 12 2017.
If the Court upholds the VCAT decision the matter will go back to VCAT for a hearing on 22-29 January 2018.
by don | Jul 19, 2017 | Reference
In 1982 Ilya Kostetsky, a north Warrandyte resident and architect, applied to Eltham Shire Council for a planning permit to subdivide his land into one-acre lots. The land, Professor’s Hill, was well known for its orchids and floristic diversity. A small part of the Hill was already a reserve managed by the Professor’s Hill Sanctuary Committee of Management.
The subdivision incorporated some good planning design in that Ilya proposed to put the road up the hill with houses sited on the contour on small bitumen drives, to reduce the damage to the land. The alternative of a road along the contour would have meant long skinny rectangular blocks, with long excavated drives cut angrily down the slopes, destroying most of the land. But the community did not want any development.
The objectors
David Cameron, representing the Professor’s Hill Sanctuary Committee of Management wrote to Cr Rob Marshall expressing their concerns about the planned subdivision and appealed for the Council to conserve the land. This started a campaign that led to the Warrandyte Environment League (WEL), taking it on as a test case.
At the time Eltham Shire had a majority of councilors who were sympathetic to the environment, backed by experienced staff in the planning and engineering departments. They accepted the concerns of residents regarding the impact of erosion. The view of the Council was that subdivision could only go ahead with 2-acre minimum lot size. Ilya appealed the decision.
The Appeal
The Planning Appeals Board chaired by Stuart Morris heard the matter on 25th October 1983. WEL’s case was to do with the environmental quality of the land. Doug Seymour led the appeal case on behalf of WEL. As an engineer, with council experience, he carefully researched and assessed the development. At the Appeal hearing, he brought in specialists in soil, drainage, design principles and roads to support his arguments. One of his most persuasive experts was David Cameron, a botanist.
David represented the Professor’s Hill Sanctuary Committee of Management, and presented data on the floristic quality of the land. David’s submission was based on his botanical survey of Professor’s Hill covering the period 1974-83, for all months of the year. Such surveys must be conducted in all seasons of the year, to detect grasses and orchids, and need to be done over as many years as possible as some plants only flower after fire or a good season.
Taking data that were well known for other local reserves and Victorian State Parks, David was able to demonstrate via comparison, that Professor’s Hill had incredible diversity and capacity to be representative of local flora. For example, there were 37 orchid species on Professor’s Hill then, more than any other reserve or Mt Buffalo National Park, and nearly as many as Ferntree Gully
by don | Jul 8, 2017 | Reference
Concrete green wedges
The Supreme Court has overturned a VCAT decision and approved a large place of worship in the Green Wedge at Carrum Downs. The case turned on whether the development qualified as a place of worship.
The Defenders of the South East Green Wedge objected to this proposal because its scale and bulk would be completely out of place in the open countryside. It consisted of a double-storey hall to accommodate up to 3500 people, two double-storey buildings, a large two-storey guesthouse with a lift, a caretaker’s dwelling and a big barn, all on a 26.3 hectare site.
There are four outstanding applications for places of worship in the South East Green Wedge, including one with towers as tall as a seven-storey building. If this trend is allowed to continue, our delightful green wedges will soon be transferred into an urban-type landscape dominated by large buildings.
Barry Ross, Hampton
by don | Jun 28, 2017 | News, Pigeon Bank
28 June 2017
The Supreme court has notified parties to the case that, because of Court time constraints, the directions hearing has been deferred to a date yet to be announced. The Court has indicated that the new date will not be in July or August.
by don | Jun 28, 2017 | News, Pigeon Bank
Phillip Mannerheim Holdings Pty Ltd have upped the ante in this Pigeon Bank Road case and sought permission from the Supreme Court to appeal the VCAT decision to allow an appeal against the development.
The application for Leave to Appeal will be heard on June 30
by don | Jun 28, 2017 | Pigeon Bank
VCAT today accepted the right of residents and community groups to mount an appeal against Council’s on the Pigeon Bank Road development. This was despite vigorous opposition from the developer, Phillip Mannerheim Holdings Pty Ltd. The Tribunal member said that among another things, ” I am not persuaded by the permit applicant that the impact of the proposal would be ‘minimal’. Notwithstanding the general support of statutory authorities, I consider that the scale of the proposal raises broader impacts on the community, beyond just adjacent properties.” And later “I consider that the section 82 and 82B applicants’ case has some chance of success. The acceptability of the proposal having regard to relevant planning policy and zone/overlay controls, the nature and extent of proposed vegetation removal (and its environmental impact), together with the siting and landscape impacts of the dwelling warrant independent consideration by the Tribunal.”
A hearing date has been set for September 25, 2017
by don | Jun 28, 2017 | News, Pigeon Bank
The Warrandyte Community Association, in conjunction with Friends of Nillumbik and The Green Wedge Protection Group, has decided to appeal Council’s decision to allow a development at Lot 2 Pigeon Bank Road. The surprise decision of Council to ignore the expert officers report has meant that a rear-guard campaign has to be organised said WCA President Dick Davies. The community groups are going to support the residents who have objected to the proposal and take a case to the Victorian and Administrative Appeals Tribunal ( VCAT ).
A solicitor and barrister have been appointed to help with the case.
At its meeting on 14th March 2017 the new Nillumbik Council granted planning permission for a dwelling on Lot 2 Pigeon Bank Road, North Warrandyte – despite the recommendation from Council Officers that the application be refused. The proposed development is contrary to the purpose of the Rural Conservation Zone and the planning regulations of the Green Wedge. It is on a block that does not a carry an automatic right to build and which is smaller than the current minimum subdivision. While there have been some developments on small lots in this zone most are on open land.
This land is heavily treed and steep. The report of the Royal Commission into the 2009 bushfires recommended against housing in such inaccessible areas because of the risk to residents. The proposed development consequently seeks to remove a very large portion of the vegetation, including over 740 trees. This clearing will also have adverse consequences for fauna which will lose essential habitat.
This decision sets a very bad precedent. It is bad planning and indicates a worrisome disregard for the planning requirements of the Green Wedge and the Rural conservation Zone within the wedge.
See Council Officer’s recommendations and Council decision here
by don | Jun 28, 2017 | Pigeon Bank
At its meeting on March 14, 2017 the new Nillumbik council granted planning permission for a dwelling on Lot 2 Pigeon Bank Road, North Warrandyte.
Permission was granted despite a recommendation from the Council Officers that the application be refused.
The proposed development is contrary to the purpose of the Rural Conservation Zone and the planning regulations of the Green Wedge. It is on a block that does not a carry an automatic right to build and which is smaller than the current minimum subdivision. While there have been some developments on small lots in this zone most are on open land.
This land is heavily treed and steep. The report of the Royal Commission into the 2009 (?) bushfires recommended against housing in such inaccessible
areas because of the risk to residents. The proposed development consequently seeks to remove a very large portion of the vegetation, including over 740 trees.
This clearing will also have adverse consequences for fauna which will lose essential habitat.
This decision sets a very bad precedent. It is bad planning and indicates a worrisome lack of good governance by the new council and disregard for the planning requirements of the Green Wedge and the Rural conservation Zones within the wedge.
See Council Officers’ Recommendations here.
by don | Jun 27, 2017 | Reference
“Green wedges” are non-urban areas that surround the built-up urban areas of metropolitan Melbourne and are outside the urban growth boundary
The green wedges accommodate agricultural and recreational uses, as well as a variety of important functions that support Melbourne.
Melbourne’s planning policies have tried to protect the non-urban green wedges for fifty years, starting with Rupert Hamer as Minister for Local Government in 1966, and later as Liberal Premier 1972-81.
In October 2002 the government released “Melbourne 2030 – Planning for sustainable growth”, a 30 year plan to manage urban growth and development across metropolitan Melbourne. It aimed to protect the green wedges from inappropriate development and encourage proper management of these areas (policy 2.4), through a number of policy initiatives:
1. Implement new planning scheme provisions to secure the protection of metropolitan green wedges in the planning system (2.4.1)
2. Work with local councils to support the consolidation of new residential development into existing settlements in the green wedges, where planned services are available and relevant values can be protected (2.4.2)
3. Amend planning schemes affecting green wedges to ensure that recreation-type developments, such as golf courses with associated housing development, are only approved where they support Melbourne 2030 and local settlement policies (2.4.3)
4. Legislate to provide protection for areas of high environmental and scenic value in metropolitan green wedges such as Nillumbik, the Dandenong Ranges, the Yarra Valley, Westernport and the Mornington Peninsula (2.4.4)
The Nillumbik Council Plan 2009–2013 recognised the importance of the Green Wedge for the local economy. It supported actions to protect the environment and landscapes by encouraging appropriate economic development in the Green Wedge including tourism, food production and agriculture.
In addition, Nillumbik Council, though community consultation and research, produced the Nillumbik Green Wedge Management Plan 2010 to 2025.
The purpose of the Plan is to direct the sustainable management of the Nillumbik Green Wedge in relation to all strategic planning and use of the non-urban areas of the Shire.
The Nillumbik community has a strong attachment to the Nillumbik Green Wedge and is keenly interested in safeguarding this special place now and for future generations.
The Plan states that the Green Wedge will be secure and will be valued by the local and wider Melbourne community for its natural and cultural values. The future of the Nillumbik Green Wedge is one in which:
• natural and cultural values are conserved and enhanced
• bush and rural landscapes are conserved and enhanced
• the economic future is sound
• communities are strong, connected and supported and are knowledgeable about the Nillumbik Green Wedge
• local identity and diversity is respected and nurtured.
At the most recent elections a number of Councillors were elected on the basis of their purported support for the Green Wedge. Now they are backing away from this. The Green Wedge has disappeared from the Council’s five strategic objectives, which drive forthcoming annual budgets until July 2021.
Nillumbik shire was established in 1994 as a conservation shire with the Green Wedge as its strategic focus. It is fundamental to the shire’s identity and its responsibility. The current Councillors are ignoring their fundamental responsibility to care for the Nillumbik Green Wedge, the very basis of the shire’s establishment.
References:
Nillumbik Green Wedge Management Plan: Part 1 and Part 2
