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..
Zone abuse: Clarke faction does it again
The story so far: Council receives an application for a permit to build a 150 seat restaurant at 103 Bannons Lane, Yarrambat. Council officers produce a recommendation that it should proceed. We previously wrote about this here. Cr Brooker ‘calls it in’ for consideration by the full Council. It was considered at the meeting of the Council’s Future Nillumbik Committee held last week. This is about what happened at that meeting.
Imagine a plan to build an abattoir in the Eltham shopping centre. Imagine that the Council approves it. And that their report says don’t worry, we’ve imposed seventy six conditions on them to make sure there will be no detrimental effects on the area. That won’t happen, will it, because it Is obviously wrong, and no focus on the detail will make it acceptable. This proposal for a 150 seat restaurant in the Rural Conservation Zone in Bannons Lane, Yarrambat, is just as wrong, just not so obvious.
Cr Clarke, Cr Ranken, Mayor Egan and Cr Ashton: developments they like, green wedge regulations they don’t. A 150 seat restaurant just doesn’t compute in the Nillumbik green wedge, and presently there’s no such thing. But this clique wants to see the first. And to increase the chances it has turned over the entire Council planning staff to create a planning department which has recommended this application.
The Rural Conservation Zone is the predominant zone in the Nillumbik green wedge, and applies to 103 Bannons Lane. Its purpose, paraphrased, is to protect or conserve the natural environment, biodiversity and the character of open rural and scenic landscapes. Also, to provide for agricultural use consistent with environmental and landscape values.
A 150 seat restaurant belongs in a township, not in the Rural Conservation Zone.
But there is a complication. A restaurant may be considered in the zone if it is ‘in conjunction’ with agriculture. The intent of the provision is not to allow restaurants to spring up in the green wedge, but to allow one to be considered where it might complement or supplement a separate agricultural undertaking. The most obvious example is the vineyard with a winery and a cellar door. The Planning Provisions say that ‘there must be an essential association between the two uses’ and that the two uses must have a ‘genuine, close and continuing functional relationship’.
No agriculture has been carried out on the site in the past twenty years, according to long term neighbours, so you would think it obvious that this condition cannot be satisfied. But no, what we have here is a potential loophole. The applicant proposes to plant olive trees and lemon trees on half the 8.7 ha property, and claims that that will be the agricultural use. The applicant’s business analyst claimed that the idea was ‘paddock to plate’. We can’t wait to see the menu!
Having called in the application, Cr Brooker submitted a motion to reject it on a list of grounds, the first of which was that it ‘fails to adequately demonstrate that the proposed restaurant use will be ‘in conjunction’ with the proposed agricultural use.’ He observed that the alleged agricultural use is nothing more than a pretext to allow the commissioning of a restaurant. Not only will there be no essential association between the olive trees and restaurant, they will take from four to seven years to bear any fruit, and one of the conditions imposed on the recommended permit is the that the restaurant must be completed inside four years!
But these Council officers believe that the requirement for the associated agricultural use will be satisfied as soon as sixty two olive trees and sixteen lemon trees are ‘in the ground’!
29 residents submitted objections to the proposal, eight of whom presented at the (Zoom) meeting. Most were long term residents of the area, up to fifty years. All were articulate and had a good awareness of the issue.
One submitter, a new resident who had given up on his 140 acre farm in Wollert because of encroaching urban development, commented on the impossibility of running a viable agricultural operation on four hectares.
This proposal should have been rejected based on there being no genuine agricultural use ‘in conjunction’ with it. But other aspects of the proposal could also have caused it fail, all well covered by the objectors. The introduction of a restaurant allowed to open until 10 pm seven days per week from noise, light pollution and traffic will amount to a violation of the rural character surrounding residents have a right to expect. Effluent from the site is a concern, as is the effect on habitat and faunal pathways. One neighbour remarked that there are supposedly 200 nesting pairs of Wedge Tailed eagles left in Australia, and one of them has its eyrie in nearby Edward Henty Avenue. Wedgies don’t like people.
In questioning the applicant, represented by a business analyst rather than an agricultural expert, Cr Ashton was unimpressed by the agricultural history of the applicant, but of course voted with the Clarke faction to reject Cr Brooker’s motion to reject the application.
In support of Cr Clarke’s answering motion to grant the permit, no member of the Clarke faction addressed any of the substantive issues. Cr Clarke claimed that the in conjunction test was ‘contentious’. If so, the only reason it is contentious is that it gets in the way of developers who wish to exploit the green wedge, and there is no shortage of those. And now Cr Clarke is making his contribution. He recited a list of VCAT cases in support of his ‘contentious’ theory, while managing not to refer to the actual content of any of them. Amazingly, he suggested that a reason for granting the application was that it would go to VCAT if they didn’t.
Cr Ashton’s line was that the independent judgement of the Council officers should be respected. These are the Council officers newly recruited by this Council, and it is not to reflect badly on them to suggest that they will take their lead from the current regime. And Cr Ashton was the mover of the motion, in 2017, to override the then officers’ recommendation to reject the application to build a house on a football field-sized clearing on a steep, heavily treed block in the RURAL CONSERVATION ZONE in North Warrandyte.
Mayor Egan said that she lives next to Nillumbik Cellars and the noise doesn’t bother her, and she thought that the objections from neighbouring residents was overblown.
But it was, surprisingly, Cr Ranken who most directly related the Clarke faction’s position. Possibly because he is genuinely oblivious to the importance of the preservation of the natural environment to humanity, let alone the neighbours in Bannons Lane, and also because he lacks political acumen, he outlined the Clarke position in a way Cr Clarke never would. Here’s what he said:
“I think it’s a great thing that people are prepared to spend and put up restaurants I mean you only have to walk down the street there are so many shops that have closed.
Was this street in the green wedge, Cr Ranken? And whatever street it was, did their closing have anything to do with Covid 19?
I think it’s great, to be able to employ all those people in our local community I think it’s a wonderful thing. I commend it I think it’s going to be wonderful.
Ah, jobs, jobs, jobs. We’ll justify the degradation of an irreplaceable asset with a few casual employees who probably will not be locals anyway.
I think they’ve done a terrific job and I take my hat off to them. Well done.”
Powerful argument, Councillor!
This is the Council whose ‘Draft Economic Strategy’ suggested that it’s an issue that Nillumbik residents spend $1billion ‘outside the Shire’. Evidently the solution is to provide a dining experience in the green wedge for the residents of Northcote, so ‘we’ can steal some revenue back.
And then of course, the vote: In favour of the restaurant: Cr Clarke, Mayor Egan and Crs Ranken and Ashton. Against: Crs Brooker, Perkins and Dumaresq.
This Council, as controlled by the Clarke faction, has been utterly consistent during its term. From its ill-fated support of the Pigeon Bank development application in 2017, though its risible community consultation project right through to this current application, which is in some ways the clearest demonstration yet of their contempt for the green wedge concept and for our green wedge Shire.
In a rare moment of unanimity, last week all seven Nillumbik Councillors agreed that the Council had failed on Chapel Lane. You’ll recall we covered that continuing disaster in a previous newsletter, No need for a permit: Dump it in the Nillumbik Green Wedge. Brief recap: for two years a company called Earth Solutions Group, or ESG, has been dumping hundreds of thousands of tonnes of fill from urban development sites in the Green Wedge Zone in Doreen.
Well, it seems that Cr Clarke was unaware that there was a problem. ‘Only came on my radar two weeks ago’, he said, at last week’s meeting of the Council’s Future Nillumbik Committee. This was despite the fact that he was Mayor of the Shire at the time this started, and that he’d already presided over a purge of the Council organization, from the CEO down, and including all of the planning staff, so you would think his new staff would keep him in the loop.
ESG was represented at the FNC meeting by a lawyer. He had never been to the site, thought clean fill was a desirable commodity, had no knowledge of the planning scheme but was convinced that all that fill would be great for increasing the production of unknown varieties of hay.
Cr Clarke asked him, since ESG had gone to the trouble of applying to the previous Council for a certificate saying it was OK to proceed with dumping at their first site, 130 Chapel Lane, why didn’t they do the same for their later and continuing site at 265? Perhaps it was because the previous Council had refused him the permit. But no, the lawyer, John Bordolone, said that they’d had the go ahead from a Council officer in an email in July last year.
Eh? What? What was the officer’s name? Could you read out the juicy bits of the email, Cr Perkins asked? Bordolone obliged, having some difficulty pronouncing the name of the officer, but yes, it said go ahead, ‘the hydrology report is OK’.
So now Council is going to write a letter to the Minister, and seek legal advice. Stirring stuff. The trouble is, this dumping has been going on for two years, and residents have been complaining since it began. Current Mayor Egan has known about it for over eighteen months, according to correspondence we’ve seen.
Sadly, what we’re seeing here is not just incompetence, it’s the inevitable response of a deliberate program to weaken green wedge protections by Cr Clarke and his allies, Cr Ranken, Mayor Egan and Cr Ashton. These four vote in unison, outmatching Crs Perkins, Dumaresq and Brooker, routinely voting for developer friendly proposals and orchestrating a weak Green Wedge Management Plan. But their greatest achievement has been the gutting of the Council organization, so that it is no longer able to perform its proper function.
Cr Perkins described the debacle well at the meeting. “What were the officers thinking? Under the previous Council, I think they would have been thinking something very different. There would have been officers who have been in Nillumbik a long time, people who had an understanding of the green wedge in Nillumbik. But this is what happens when you get a new Council that sweeps the room, gets rid of all the administration and effectively erases the corporate memory of the organization so we have well meaning officers trying to do the sort of thing that they would imagine would appease their Council.”
As Cr Perkins observed, addressing the other Councillors at the FNC meeting, “you have to be careful what you wish for.” Crs Clarke and Ranken value ‘economic development’ over green wedge protection, but Mayor Egan and Cr Ashton march to the beat of different drum: they want to see less regulation of their green wedge land – so they didn’t bargain for a consequence like Chapel Lane. But it’s a consequence of the campaign to defenestrate the Council that they signed up for.
As far as Chapel Lane is concerned, it should be stopped forthwith. The Council have the weapons, if they would use them. At the meeting their motion called for a report on options by last Friday. Will the Clarke – PALS clique on Council hold fast, blame the debacle on the State Government, and prevaricate?
Danielle Green, State Member for Yan Yean, just posted this on the Chapel Lane Community Facebook page:
Just got a tip via the Environment Ministers Office that Nillumbik has given ESG until cob today to lodge a planning permit. Maybe ESG has known this for several which is why their activity has been so frenetic.
Nillumbik Council planners are recommending the approval of an application to build a restaurant at 103 Bannons Lane, on land zoned Rural Conservation in Yarrambat. Cr Grant Brooker has ‘called it in’, meaning Council itself will consider the application – at its ‘Future Nillumbik Committee’ meeting next Tuesday evening.
‘Restaurant’ is a prohibited land use in the green wedge, unless it is
- used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry or Winery. (51.02)
‘in conjunction’ means that ‘there must be an essential association between the two uses’ and that the two uses must have a ‘genuine, close and continuing functional relationship’.(64.02) If the condition is satisfied, a permit will only be issued if it in other ways complies with the requirements of the zone – in this case the Rural Conservation Zone.
The land at 103 Bannons Lane is 8.7 ha. No agriculture is currently taking place there. The proposal is to plant 66 olive trees, 16 lemon trees and a few herbs on half of it. This doesn’t just fall short of satisfying the in conjunction condition, it’s almost a joke.
The Council officers’ report sternly requires that the Restaurant use may not commence until the trees are planted. There is not even any requirement for production, let alone sales. This is at best a garden setting for the restaurant, not agriculture. It’s a cardboard replica of a land use. The officers have it wrong, the in conjunction test is not satisfied.
The officer report also includes a long list of conditions, specifying for instance that signage should be floodlit, not internally lit and not flashing, and that an acoustic engineer must investigate ‘noise emissions’, which probably just means noise. All these conditions do is highlight the inappropriate nature of the application.
In support of the application the officers’ report quotes the Shire’s draft Economic strategy – which is itself a joke. Remember it focused on a completely mythical entity called the ‘economy of Nillumbik’, which supposedly suffers when we locals eat in Carlton or shop in Greensborough – that’s ‘lost revenue’! On that thinking, the ‘economy’ of industrial areas like Brooklyn are in terrific shape, while North Balwyn and North Warrandyte are basket cases!
And speaking of economic factors, agricultural land close to Melbourne is recognized as strategically important. This proposal makes this property unavailable for actual agriculture.
The report says that ‘conservation values and environmental sensitivity ‘needs to be balanced against the strong focus of both State and local policies for economic development. In the green wedge!!!!
Anyhow, it seems that the economic benefits of this restaurant count, while somehow violating the green wedge is just business. Brings to mind a comment by a submitter to Manningham’s C117 Planning Panel. You may recall that Manningham Council wanted to do away with the ‘in conjunction’ test. She said that she was ‘not in favour of sacrificing our green wedge in the interests of a dining experience for people from Northcote’. Hear, hear.
It’s interesting to reflect on what’s happened in the three plus years of this Council – in which it has been dominated by the group of four pro-development, anti-regulation Councillors, Cr Clarke, Mayor Egan, Cr Ranken and Cr Ashton, who on green wedge protection issues operate as a voting bloc, prevailing over Crs Brooker, Perkins and Dumaresq.
Remember the Pigeon Bank Road campaign? The current Council nailed its colours to the mast when it overrode its own officers’ decision to reject an application to cut down 746 trees and build a house on a ridge line in the Rural Conservation Zone in North Warrandyte. It was left to the community, VCAT and the Supreme Court to put things right. We hadn’t adopted the brilliant ‘WedgeTales’ moniker then, but that was the beginning of the website. Our first story was called Council Issues Planning Permit – rejects officer recommendations.
A major change wrought by this Council has been a hollowing out of the professional organization. None of the officers responsible for properly recommending against the Pigeon Bank application are still in employment at Nillumbik, which leads us to the current situation, with a new team predictably and inevitably falling into line with the dominant clique’s position – leaving it to Cr Brooker to ‘call in’ the application for decision at next Tuesday night’s ‘Future Nillumbik Committee’ meeting of Council.
This application is so lacking in merit that if Council manages to uphold the officer’s recommendations it will almost certainly fail subsequently when it is taken to VCAT by the community.
No need for a permit: Dump it in the Nillumbik Green Wedge!
Development projects all over Melbourne generate large amounts of unwanted fill – soil of variable quality (who knows what’s in it?) – which must be disposed of. Ideally not too far away, preferably inside the Metropolitan area to reduce transport costs.
Here’s a good idea: the green wedge! You find a green wedge landowner who is not using the land and could do with some money, put a truck entrance on the property, some earthmoving equipment and a credit card machine, and advertise that you’re open for business. Pretty soon there are 200 tip trucks roaring along quiet country roads six days a week, traumatizing residents, fauna and the landscape, and ripping up the tarmac, to be repaired at ratepayers’ expense.
The disposal of fill is the business of ESG, Earth Solutions Group. One of their dump sites is at 265 Chapel Lane, Doreen. Here are ESG’s rates for the site:
Cost to dump
$5.50 pm3 + gst
$8.80 pm3 + gst
$12.00 pm3 + gst
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.
With the Corona virus first and foremost in our minds everything else seem less important, but that does not mean other things are not still important, and of course many of us now have more time to think about them. The Nillumbik Council has published a ‘Draft Economic Strategy’ which deserves some attention, not because it is a useful contribution but because scarce funds are being expended on a project which has little value.
The Draft suggests that it’s a problem that residents spend $1billion ‘outside the Shire’, and that ‘addressing this escape expenditure is key to growing the number of local businesses and jobs’. Escape expenditure? Are we in competition with ‘Melbourne, Greensborough and Doncaster’, the supposed beneficiaries of this ‘leakage’? The document also suggests that it’s a problem that 77% of the working population of Nillumbik commutes outside the Shire. That of course not a real problem: it’s a reflection of the fact that Nillumbik is a green outer metropolitan Shire in which people like to live and which has been zoned to expressly avoid urbanization.
Remember when government offices and some large corporates had framed ‘mission statements’ hanging in their entrance foyers? Thankfully that fashion has passed, but now we have ‘Our Vision’. Here’s ‘Our Vision’ from Nillumbik’s ‘Draft Economic Strategy’:
- We will capitalise on our strengths to grow the economy through advocacy, collaboration, partnerships and innovation, compatible with the Shire’s unique natural environment
The sad thing is that someone actually wrote this, and probably it was argued about and discussed at a meeting of Council officers. But we are not meant to actually think about it. Growth, is that what we, the residents of the Shire really need? More houses? More businesses? Nillumbik is not a business park, it’s a green wedge shire. But the fundamental problem with this so-called ‘vision’ and with the whole idea of an ‘economic strategy’ for Nillumbik is that in no useful sense does Nillumbik have a defined ‘economy’.
The Federal and State governments have roles to play in managing their economies, using monetary and fiscal measures and by manipulating taxes and incentives. The major statistical indicators of the state of an economy relate to employment and productivity, and these measures are neither available nor meaningful at local government level. Nor do local governments have access to the tools of economic management. Nillumbik Council has significant financial responsibilities, of course. It has not much choice about rates, annual increases having been capped by the State, and foregoing an annual increment would generally be irresponsible. It can borrow on our behalf, but its most important financial management activity is budgeting, that is deciding how to spend our money. Managing finances, that’s the job. Not managing an ‘economy’.
Council does have a role in relation to granting approvals for new or expanding businesses, and they should of course aim to do this efficiently. The Draft says that they will ‘Provide businesses with improved assistance with the planning process’ and implement the State Government’s Better Approvals Project’. That’s fine, but it’s interesting to note that 19 Councils, including Manningham, have already implemented ‘Better Approvals’ – but, as far as we can ascertain, not Nillumbik yet.
Under the overblown heading ‘Strategic Economic drivers’ we come across ‘The need to create local businesses and jobs’, and one of the ways of doing that is said to be to do with Eltham and Diamond Creek:
- ‘Their design and operation will provide spaces where business can thrive, residents and visitors can congregate and people can live’.
The Council most certainly has the primary responsibility for town planning in the Shire, and of course we don’t object to planning aiming to help business to thrive, but will this statement, in this document, be a practically useful guide? Will it help in the implementation of practical planning?
The document goes on to say ‘These centres are vital to Nillumbik’s economic future’. This is nonsense. ‘Nillumbik’s economic future’ is not a useful concept.
Vague statements about the ‘the economy’ and ‘economic sustainability’ are often used to support arguments for the relaxation of regulations so that approvals can be given to favoured business applications. This Council has already signalled its desire to develop the green wedge, indicating that they don’t value the regulations which support its continued existence. It may be that the underlying purpose of the ‘Draft Economic Strategy’ is merely to provide cover for approving borderline development applications.
It is unfortunate that this Council is devoting resources to a project with no prospect of delivering real benefits to the Shire.
An important election year in Nillumbik
Council elections are held every four years in Victoria, and 2020 is an election year. They are due in October, by which time we hope and expect the Covid-19 crisis will have passed.
There’s a lot at stake this year in Nillumbik. 2016 saw the emergence of lobby group PALS, a closed Facebook Group whose stated position was and continues to be that the owners of green wedge properties should be allowed to look after their land as they see fit, without the interference of regulation – a recipe for the gradual loss of the green wedge as we know it. They ran a campaign which focused on two amendments proposed by the former council which aimed to enhance green wedge protections. Few had any real idea as to what these amendments contained but that didn’t stop a fear campaign bearing fruit. Self-described PALS founder Karen Egan was elected in Bunjil Ward and Jane Ashton in North Warrandyte’s Sugarloaf Ward. Together with Cr Peter Clarke and Cr Bruce Rankin they formed a voting bloc of four out of seven councillors which has consistently put development and self-interest ahead of respect for the planning system and the protection of our green wedge.
The new Council’s position was signalled early. In 2017 it decided to approve a development application which had been judged inappropriate by council officers. This application proposed a football oval-sized clearing on a ridgeline and the removal of over 700 trees from a property zoned Rural Conservation in Pigeon Bank Road, North Warrandyte. The Council ignored the advice of their own experts without revealing their rationale. As a result of a community campaign which involved not only VCAT but the Supreme Court the application was withdrawn by the developer.
With this decision the new council demonstrated not only their view of the green wedge, but also their ignorance of and lack of respect for the State Planning Provisions and the Local Planning Scheme.
The council attempted to subvert the Planning Scheme in a similar way in relation to an application to inappropriately develop a property in Barreenong Road, Cottles Bridge. Again, Council failed to uphold the recommendation by its own planning officers that the application be refused, so it was left to the community to object at VCAT, which disallowed the development.
These failures involved both the applicant and ratepayers in misguided expense and forced the community to devote time and money to compensate for the Council’s failure to properly administer the Planning Scheme.
All green wedge councils are obliged to create a Green Wedge Management Plan. Nillumbik’s first GWMP was created in 2010 and was designed to serve, with review, until 2025. For reasons not explained this Council decided that it should be replaced early. Perhaps to justify the project they launched an extensive program to find out what the community thought about the green wedge. This entire project is estimated to have cost in the vicinity of $500,000 and culminated in a ‘Community Panel’, 40 randomly selected residents whose recommendations were supposed to ‘inform’ the new plan.
Perhaps surprisingly to the Council, but to few others, it turned out that the community valued our green wedge and overwhelmingly supported its care and preservation. So it was somewhat astonishing when the council rejected key recommendations, watered down others and produced a draft at odds with the recommendations of their own panel. Following a torrent of negative community comments, including a submission from a majority of the community panel, minor modifications were made but the general drift away from environmental protection remained.
In 2018 Council proposed to sell 17 community reserves in Eltham to prop up its budget. It turned out that these reserves were a valued community asset, as an outcry finally managed to curtail the program. Upwards of three thousand people turned up at a rally to in March to protest the scheme. Points made by speakers at the rally included the heartfelt and personal, such as the young woman who related the importance to her family of the reserve next door to the house in which she grew up. As local historian Andrew Lemon remarked, “the contest is between short term fiscal expediency and adhering to the intelligent public town planning policies that helped shape Eltham”. A clear case of a Council at odds with its own community.
Possibly the greatest damage wrought by this Council has been that done to the permanent organization. Council efficiency and effectiveness depends upon the knowledge accumulated over time by its officers. This Council has presided over a cavalier clean out from CEO down and including all senior planning staff. We read in the Victorian press of staff on Casey Council being fired in accordance with the wishes of a developer. Did anything like that happen in Nillumbik? This sort of organization change is costly in terms of payouts and hiring charges, but the really significant issue is the loss of expertise, which will take years to repair.
The majority of the current Nillumbik Council have clearly demonstrated their lack of respect for the planning scheme and for their responsibility to the green wedge Shire. This is despite the fact that their own community consultation project confirmed that the overwhelming view of the community is for more, not less protection for our green wedge.
Wedge Tales is supported by the Warrandyte Community Association, the Friends of Nillumbik and also the Green Wedge Protection Group. We must make sure that next October brings a cure for what ails our Council. If you care about our green wedge shire and would consider standing as a candidate in any of Nillumbik’s seven wards at next October’s elections let us know by email.
Not to forget Manningham: North Warrandyte is in Nillumbik’s Sugarloaf Ward while South of the River, Warrandyte is in Mullum Mullum Ward, Manningham. To be a candidate for a Ward you need to live in the electorate, either Nillumbik or Manningham, but not necessarily the ward.
Please also let us know if you are keen to be involved in the campaign to get Wedge-friendly candidates elected, again by email, with your contact details. .
Here’s a map showing Nillumbik’s ward structure:
A map with more location detail is here
Nillumbik’s first GWMP was adopted in 2010 and was intended to serve as a basis until 2025. For reasons never explained the current Nillumbik Council decided to prepare a replacement, which after a year-long project was formally adopted by Council at its November meeting, amid scenes of protest. The gallery was packed and the Council divided, but the motion to adopt the Plan was passed along the now familiar 4-3 lines. Crs Clarke, Rankine, Ashton and Mayor Egan voted in favour of adoption, and Crs Brooker, Dumaresq and Perkins voted against.
This new GWMP shifts the focus away from the natural environment and towards the expectations of some resident landowners, as expressed in the phrase ‘Living in the Landscape’, the title of the current Council Plan. It is a document of only 26 pages which is more like notes towards a plan rather than an actual plan. As a pamphlet or discussion document it is better than the published draft, but it is insubstantial.
A reference to ‘buffer zones’, a concept which featured in the draft, designed to allow more subdivision in the vicinity of the urban growth boundary, and which attracted massive community criticism, has been removed – a distinct improvement
But the idea that some areas of the Shire zoned Rural Conservation should be rezoned remains, although it truly does not look like becoming a serious proposal. The document suggests that there is ‘land dotted throughout the RCZ that is already cleared for agriculture’, and which should be rezoned Green Wedge Zone (GWZ) so that land owners can engage in agriculture without getting a permit. To create a rezoning proposal would require significant effort but there does not appear to be any intention to embark on such a project. Furthermore, if the intention is to allow agriculture to proceed on suitable land it is entirely within the Council’s control to expedite permit assessments – so why bother with the idea of rezoning? Sustaining agriculture on agricultural land in the green wedges is a challenging issue, but this rezoning idea probably has more to do with satisfying the Council’s small ‘less regulation’ constituency than with promoting agriculture.
The green wedge townships are important elements in the Shire. They need to work as attractive gateways to the green wedge for visitors as well as providing amenity for residents. The Plan recognizes also that they will need to be the focus of additional ageing-in-place facilities for Shire residents, as well as for increasing population. So action A1.5 sounds relevant:
a place-making service for the townships to strengthen their identities
and attractiveness as service, population, tourism, community and
This concept was not mentioned in the draft. According to Wikipedia,
‘Placemaking is a multi-faceted approach to the planning, design and
management of public spaces.’ Sounds impressive, but what resources
would be required, and what time frame is envisaged? And a service? To
be offered to whom, the mayor of Diamond Creek? In the absence of any
further reference to organization, resource requirements or timing it is
no more than a thought bubble.
The State Government mandates that green wedge councils must prepare a
‘green wedge management plan’. This requirement is not legislated but
has been described in Departmental documentation as follows:
development of Green Wedge Management Plans is designed to fully
embrace a long-term land and resource management plan for the various
areas and issues in the Green Wedges and how such plans will be
The creation, protection and ongoing management of green wedges is a
complex and significantly technical business, which is reflected in
‘Planning Practice Note 31: Preparing a Green Wedge Management Plan’,
the Department’s guide to the process of preparing one. But this ‘GWMP’
appears to have been planned as a public relations exercise. The focus
of the project was a community consultation program culminating in a
‘Community Panel’, which made recommendations to Council. Then came the
publication of a draft and the hearing of community submissions on the
draft. The total cost of the project has not been made public, but if
all internal costs as well as consultant charges are included it is
probably in the vicinity of $500,000.
As was pointed out in several of the submissions on the draft, PPN31 was
not followed, contrary to Cr Clarke’s claim at the Council meeting. No
Steering Committee was established and no formal collaboration with
relevant bodies was embraced. Management of the program appears to have
been overseen by an external consultant without a planning background,
and in the face of the loss of long term Council planning staff.
One clear outcome of the community consultation program was to confirm
that the Shire overwhelmingly values the environment and in principle
supports the planning scheme. Only a very few survey respondents
complained of too much regulation. So it was surprising that the draft
GWMP contained significant elements which did not respect this. The
adopted GWMP is less offensive, but at the conclusion of the project
what have we got for all that expense and effort?
This has been a Council is intent on change. Its cavalier treatment of
two development applications in 2017 and its apparent attack on its own
organization makes this plain. It is believed that Council staff
turnover in 2017/18 exceeded 25%, and eventually included all senior
planning staff. To replace the substantial, previous GWMP with this
brief document has the appearance of a political act.
The most positive outcome of the entire program has been community
involvement. There were 688 responses to an online survey and 181 people
attended community workshops. There were a total of 746 submissions in
response to the draft, mostly critical. Many Shire residents have an
increased understanding of how our green wedge works.
But to spend $500,000 on this project was outrageous.
Now that community comments on the draft Green Wedge Management Plan have been made and heard by Council we’re waiting to find out what the Council will decide to do with it. After such an extensive and public project to get us to this point, what has been achieved? This newsletter puts it all together, tells the story so far, and invites you to form your own view.
Model community consultation program?
As an exercise in citizen participation in governance Nillumbik’s community engagement program could have been a model. Its ostensible purpose was to inform the preparation of a new green wedge management plan (GWMP), a document laying out how the Shire Council intended to look after its green wedge. The program was run by consultants at arm’s length from Council. It was extensive, offering maximum opportunity to Shire residents for participation, and it was transparent, with contributions professionally captured and published.
What if the
community’s views were established but then ignored?
The program had
three phases. The first consisted of two ‘Design workshops’, attended by
Council staff, Councillors and ‘stakeholders’, being the leaders of community
groups. It is unclear if these workshops produced any valuable tangible output,
but they at least kicked off the process.
phase was a six week program of general community consultation. A key element
was an online survey which asked what we liked about the green wedge, and what
opportunities and challenges we thought were associated with living in it.
Although the survey invited responses in the now familiar bureaucratic
categories of ‘environmental’, ‘social’, ‘regulatory’ and ‘economic’, it was a
genuine opportunity for the community to reveal its thoughts about the green
wedge. Following the survey were 10 community workshops and 23 ‘coffee and
chat’ sessions held at various locations across the Shire. There were 688 responses to the online survey
and 181 people attended the community workshops.
Enthusiasm for the green wedge.
Some wondered what the responses might say about green/anti-green conflict which had such a high profile around the last Council election. A review of the answers to the ‘what regulatory challenges do you see’ question revealed that only 5% of all respondents saw too much environmental regulation as a problem. The dominant survey response was enthusiasm for the green wedge and its protection.
program was documented on the Council’s website,
including verbatim responses to the online survey.
The Community Panel
The final phase of the program was the ‘Community Panel’. Initially referred to as a ‘Citizens’ Jury’, the entire project was in the hands of consultants who had established something of a proprietary process in this area, MosaicLab. 10,000 invitations were mailed to Shire residents, said to be selected at random from resident rolls. On this basis some 40 members were selected from acceptances. For reasons not stated Council mandated that selection was to be managed so that half the members were rural residents, even though only 20% of Shire residents are rural.
invitation implied a willingness to commit to attend Panel workshops on six
full Saturdays, roughly every two weeks in the months August to October, 2018. Because
service was based on acceptances Panel membership was not truly random in the manner
of a legal jury. There would have been a bias towards motivated people who saw
serving on the Panel as an opportunity to influence affairs in a particular way , to
make a social contribution or to become involved in a community project
The Panel was a
working group charged with coming up with its answer to the question “what is
the best way for us (sic) to manage Nillumbik’s green wedge, now and into the
future?” Given the nature of the
problem, its complexity and the expertise required, a team of strangers meeting
for six Saturdays is an interesting approach. However, the perspective such a panel provided would have a
unique significance because of its representative composition. Would its
orientation reflect that of the online survey?
The 2016 Council election was characterized by aggressive campaigning by a lobby group based on a closed Facebook group called PALS, for ProActive Landowners, whose platform was based on the principle that green wedge property owners know best how to care for the land, so should be allowed to do what they think best without limitation by ‘excessive’ regulation. In particular they attacked two proposed planning scheme amendments which aimed to increase green wedge protection, portraying them as an attack on landowners rights to an electorate which had little understanding of what these proposed amendments, C81 and C101, actually contained. Their campaign bore fruit and resulted in a Council with a 4/3 majority who have tended to favour development over the environment. The current Mayor, Cr Egan, is cited on the PALS Facebook page as its founder.
A Council intent on Change.
The Council has demonstrated its orientation through its handling of particular applications, notoriously one for a house on a ridgeline in the RCZ in Pigeon Bank Road, North Warrandyte. Despite Council officers recommending that no permit be granted the Council approved it, leaving it up to the community to object not only at VCAT but at the Supreme Court. No permit eventuated. You can read the full story on Wedge Tales, starting here. A similar situation occurred in Barreenong Road, Cottles Bridge, with a similar result. Both of these episodes saw the Council attempt to overstep the Planning Scheme, and fail. Both saw the community step up to support a planning scheme under threat from Council.
The new Council
wanted Change. In 2017 it engaged a consultant as a ‘Senior Strategic Advisor’.
His brief was in part to ‘re-engage the rural community on the best way to
manage the non-urban areas and to ‘review the GWMP with community engagement and participation’.
In view of the way things have turned out, it seems likely that the Council, at
least the PALS-aligned Councillors, expected that ‘community engagement and
participation’ would reveal that Shire residents would look upon the planning
scheme with disfavour.
GWMP was the first for the Shire, and was designed to serve, with periodic
updating, until 2025 This Council saw that a totally new, community-approved GWMP could be the basis upon which they would
present to the Planning Minister planning
scheme amendments which would reduce the emphasis upon environmental
Community Panel recommendations
A key rule of the Community Panel was that only recommendations with at least 80% support could be put forward. After 6 days work the recommendations agreed to were consistent with the attitudes revealed in the online survey – the dominant value was protection of the environment. No recommendations were in favour of relaxing green wedge protections. The Panel endorsed the existing GWMP.
Council’s initial response
After the Panel had completed its work and delivered its recommendations Council officers prepared an initial response, which was presented at a special Council meeting. Given that the point of the entire community consultation program was to inform the preparation of a new GWMP, it is not clear what might have been the purpose of this initial response. Might it have been to acknowledge the effort of the Panel? Or was it to add some technical and practical perspectives to the lay recommendations?
Whatever the purpose might have been, the response that was produced to a significant extent rejected the clear orientation of the Panel, which was in favour of conservation. For example, the ‘Right to farm’ recommendation of the Panel included this:
- Discourage bush block conversion to agricultural or pastoral use, or any other use that would otherwise degrade/impact vegetation and biodiversity values.
- Council does not fully support part 2 of the recommendation because of its absoluteness. Such matters are subject to planning controls and decision-making
In fact the recommendation was in no way absolute, and to observe that ‘such matters are subject to planning controls and decision making’ borders on gobbledygook. To dismiss any of the Panel’s recommendations in such haste and so cursorily seems gratuitous. In all officers wholly or partially rejected half of the Panel’s recommendations.
PALS Panel stunt
There was a side drama during the Panel process. In the lead up to the fourth Saturday PALS, unhappy with proceedings, generated an ‘Urgent Open letter re Community Panel’ to the ‘Nillumbik Shire CEO and Councillors’, and ‘All Nillumbik Shire Inhabitants’, which they posted on their Facebook page and sent to all Councillors. Reportedly there were also phone calls from ostensibly aggrieved panellists to the MosaicLab facilitators. Then, three members were missing from the following Panel session – they had quit, citing bullying and manipulation. Their concerns were shared with the rest of the Panel via a Power Point slide prepared by the facilitators. This was met with some bemusement by the remainder of the Panel because no-one could remember any bullying, nor even any agitated dispute. All three returned to the Panel for the following session. Perhaps the PALS leadership were attempting to derail the Panel process, but it turned out to be a minor interruption to proceedings.
There was a further,
related diversion. Panel rules allowed that recommendations which came close
but failed to reach the 80% support level could be submitted by any three
panellists as a ‘Minority Report’. There was one genuine minority report, the
recommendation for a ‘Green Wedge Authority’, which had 77% support on the
final Panel day. This was a recommendation that Council lobby for the creation
of a ‘Green Wedge Authority’ within the State Government infrastructure. This
was not an actual ‘authority’ but a supporting administrative unit which would
address high level issues affecting all green wedges, such as economic support
for agriculture. It missed out on 80% support on the final session because of
absences. But there was another, extra-ordinary minority report: three members
of the Panel brought a PALS type manifesto on a USB key to the final Panel
session and submitted it as a ‘minority report’. Although it did not conform to
the minority report rules, the Panel having never seen it, it was accepted as a
sort of extra, and at the Council meeting the Mayor made a point of saying that
‘all members of the community can have a say’, seeming to give this rogue
document equal weight to the recommendations of the actual Panel.
GWMP draft preparation comments
Next it was up to Council officers to prepare a draft GWMP for public comment. It seems that this process was complicated by staff turnover. In addition to hiring a consultant ‘Senior Strategic Advisor’ the 2016 Council replaced the CEO and presided over an organization-change program which saw the loss of a rumoured 77 staff, including experienced planners and the officer originally responsible for generating the draft GWMP. It seems that the preparatory work done by established planning staff was discarded and a fresh start was made under the direction of Geoff Lawler, the ‘Senior Strategic Advisor’.
Draft GWMP released for comment
The draft GWMP was released for comment on June 21. Community responses were invited via an online questionnaire and through the submission of documents, to be received by August 11. There were a total of 746 submissions, many of which were substantial. An analysis of the responses was distributed with the agenda for the Future Nillumbik committee meeting in September. Most were critical of the draft.
- 523 submitters want the draft GWMP to prioritise the protection and enhancement of the environmental aspects of the Green Wedge.
- In particular a strong emphasis was put on more detail aimed at safeguarding and protecting biodiversity. Also mentioned was the need for education about conserving the environment and the importance of stewardship, protecting water resources and vegetation.
- 184 submitters criticized the structure of the project to generate the draft, citing the lack of a steering committee, insufficient involvement with relevant external bodies and a lack of consistency with the relevant State Government ‘Practice Note’, PPN31.
green wedges are legislated in the Planning and Environment Act, administered
by the Department of Environment, Water and Planning (DELWP). Significant criticism
of the draft came in a letter from DELWP:
- It is a key principle of a GWMP to ensure alignment with Victorian State Government policies and strategies. It is current state government policy to ensure new residential development is concentrated within existing settlements and townships and this is reinforced in council’s local planning policy framework at Clause 21.05. It is noted that the revised draft GWMP suggests council may have to “re-examine” this strategic policy direction.
bureaucratic language, this comment implies that a key thrust of this draft is
contrary to Government policy and will therefore fail.
Councillors in combat
Many submitters presented in person at Future Nillumbik Committee meetings in September, 10/9 and 11/9. The majority of these 3 minute presentations were critical of the draft, not just in detail but in respect of its quality and its evident change of focus.
thing about the presentation sessions was the combative questioning of
submitters by certain Councillors, notably Crs Ashton and Clarke. Given the
prominence given to community consultation in this entire process we might have
expected the response by Councillors to members of the community interested
enough to comment on the draft to be appreciative and respectful, or at least
courteous – but such was not always the case. A common question of presenters
was ‘and where are you from?’ a question apparently based on the idea that if
you don’t live in the green wedge your view counts for less. Peter Yates, who
happens to reside in the wedge, said that he had difficulty with this question,
pointing out that the green wedge belongs to everyone, and management of it is
not the prerogative of those who happen to own properties within it from time
to time. Peter, who presented on behalf of the Nillumbik Environment Action
Group (NEAG), was asked by Cr Clarke, how many people did NEAG represent? He may
not have been totally happy with Peter’s response to the effect that meetings
about various environmental issues have seen about fifty turn up.
question from Cr Ashton, to a questioner criticising the lack of environmental
protection in the draft, was along the lines ‘how would you collect enough
revenue to pay Council’s bills’, implying we suppose that there is no
alternative but to relax the rules protecting the green wedge.
Many of the written submissions were substantial. The whole collection amounts to a useful library of ideas which we hope to dip into in the coming months.
by the Green Wedge Protection Group (GWPG) contained a comprehensive table
listing the objectives and actions from the draft, identified problems of logic
and intent, and in some cases made constructive suggestions on the way forward.
by Jeremy Loftus-Hills was critical of the draft’s implication as to the
purpose of the green wedge:
- The idea that the green wedge exists for the pleasure of the people who live in it is a concoction of this Council and should be stripped out of the plan. Likewise, the idea that it exists for the profit and sustenance of those who work and live within it is also patently false and should also be removed.
is of particular interest, because it was created by a ‘majority of the
Community Panel’, the Panel the Council created to inform the new plan. Out of
this group of strangers, twenty two of them were engaged enough and concerned
enough to spend time on a collegiate effort to critique the draft. You can read
their submission here.
To quote from the submission’s conclusion:
- The 22 Panel members who prepared this submission conclude that the draft GWMP approach needs a fundamental rethink. Proposed actions that attack core foundations of the Green Wedge should be removed. Specific detail is needed on actions that support the community’s overwhelming desire to protect the Green Wedge.
Geoff Lawler, the consultant who oversaw the entire community consultation project, and who ended up taking responsibility for preparing the draft GWMP after the departure of the established planning officers, claimed that the objective of the consultation approach was ‘community cohesion’.
Whether or not
that was a realistic goal for such a process, it seems that the result, at
least at this stage, is a lack of cohesion between the Council and the
community. It will be fascinating to see what changes have been made to the
draft when the new GWMP is considered by Council in November.
At this stage
of the process what has been demonstrated is that the Council’s aims in respect
of the green wedge are not those of the Shire community. Consultation is important
in developing plans and policy, but pointless if the results are ignored. It is
likely that in the vicinity of $500,000 has been spent on this entire project
by Council, and if this draft is indicative of the final result then it has
Remember Manningham’s C117? This was the Planning Scheme amendment proposed by the Council containing a revised clause 21.07, aiming to facilitate more tourist development in the Rural Conservation zone. Poorly drafted, inimical to the green wedge and facing solid community resistance.
You may recall that we were delighted to report that the Planning Panel, convened to consider the community’s objections, did a thorough job of analysis and generated a version which essentially scrubbed the modifications to 21.07. Job done by the community, we thought.
But no: you may be further recalling that the Council was not done yet: it rejected the findings of the Panel, and ‘adopted’ its own version, for approval by the Minister. We closed our last report, in February, by saying ‘Responsibility now falls on the Minister for Planning, The Hon Richard Wynne, MP, to properly support the green wedge.’
Well, he has. Victorian Government Gazette S377, published last Friday, announced that
- ‘The Minister for Planning has approved Amendment C117mann to the Manningham Planning Scheme’.
Note that it did not say which version, but we checked, and it was the Panel’s version!
This has been quite the saga. These battles are all variations on the same theme: one side treasures the green wedge and its protection, the other sees the green wedge as vacant land, ripe for ‘sustainable economic development’.
Our community has made an effort and been rewarded. Manningham Council has expended significant resources on this ill-conceived project. It would be nice to think they might work with rather than against the community next time.
After an extensive program of community consultation the Nillumbik
Council has produced a draft replacement green wedge management plan
(GWMP) for the Shire. Serious reservations have been expressed about
this document, notably that
- it doesn’t actually reflect the community’s views;
- much of it is non-specific and not actionable;
- it contains proposals which betray our ‘Green Wedge Shire’.
“The Shire of Nillumbik was formed in 1994 with the conservation
of the green wedge as its strategic focus. The Nillumbik Green Wedge is
distinguished from others by the quality of its environment and natural
bushland. Above all it is the environmental qualities – the topography,
the dense bushland and isolated spaces, the rivers and streams – and
the diverse townships that create a sense of place and continue to draw
people to settle in Nillumbik.”
(Page 6, Current GWMP, planned to run till 2025)
The draft plan appears to reject this strategic focus, creating a new
one in which conservation takes a back seat to a ‘diverse community,
living in the landscape to enhance the environmental, social and
economic sustainability of the Shire’.
Whereas the current plan contains specific actions in support of
conservation, this draft plan threatens to increase population density
in our green wedge, water down the zoning and in other ways reduce
This could be seen as surprising, given that the draft’s preparation
follows an extensive program of community consultation which
emphatically endorsed conservation as the key principle. It is as though
the consultation program was conducted to justify this ‘living in the
landscape’ idea, on the basis that no-one likes regulations, and when
the program failed to do this it was ignored. In other words, the
consultation program appears not to have been conducted in good faith.
But this consultation process is not yet complete: the draft is open for comment until Sunday, 11th August. If you live in Nillumbik you must have your say.
A convenient way to have your say is by using the website loveyourgreenwedge.com.
This site simplifies the emailing of a brief comment to Council, but
more importantly, it provides guidance in responding on the Council’s
feedback form. The Council’s form enables you to rate your approval of a
range of statements, but also to make comments. The comments are
important, and the loveyourgreenwedge folk have created useful
information as a guide.
Otherwise, the draft GWMP is is here, and you can go directly to the Council’s Feedback – Draft Green Wedge Management Plan.
“C117 was a threat to the green wedge. The Planning Panel
did a first class job of identifying its problems and flaws. The officers’
report continues to push it, in a wordy document the intent of which is clear
but the arguments not. We will find out at the next Council meeting how the
Councillors respond. Does the Council support the green wedge concept, or is
development the key to happiness?”
This is how we ended our
last report on C117. On the agenda for last night’s Council meeting was the
officers’ report on C117, with its recommendation to ignore the Planning
Panel’s advice and recommend that the Minister accept C117, and in particular
the amended clause 21.07.
Cr McLeish moved that the officer’s recommendation be
accepted, and then spoke in a derogatory way about the Panel’s report, calling
it ‘laughable’, without successfully engaging with any of its arguments. At one
point he said that he suspected that land banking was happening in Manningham,
seemingly implying that C117 would address that problem but without explaining
Cr Chen spoke (very) generally about the need for Council to
take a ‘proactive approach’ and about ‘long term sustainability’, also failing
to address any substance. She mentioned that C117 didn’t ‘change zones’, which
of course it didn’t and couldn’t. Cr McLeish made a similar observation, but
since one of the issues the Panel had with C117 was tension between it and the
RCZ this would not seem to be an argument in C117’s favour.
Cr Galbally, who seconded Cr McLeish’s motion, couldn’t
think of anything to add.
Cr Conlon was the lone speaker against the motion, that is
to accept the Planning Panel’s recommendation, and in the vote he was the only
vote against. Crs McLeish, Galbally, Kleinert, Haynes, Zafiropoulos and Mayor
Piccinini voted for the motion.
Given the superficial and general nature of the discussion
of a topic as significant as a Planning Scheme amendment, and a disagreement
with a Planning Panel to boot, the impression is that this Council does not
‘get’ the green wedge and its vulnerability. Not the permanent organization who
were responsible for C117 in the first place, and for continuing to support it
against the Planning Panel’s advice, and not the Councillors who trod lightly
upon the issue last night. The impression given is that as a Council they were
not very interested in the issues raised by their own amendment.
Responsibility now falls on the Minister for Planning, The
Hon Richard Wynne, MP, to properly support the green wedge. His email address is email@example.com
We previously reported that the C117 Planning Panel properly supported the essential purposes of the green wedge in its treatment of the threat posed by Manningham Council’s amendment. The Panel rejected the problematic part of the amendment, namely the revised MSS, clause 21.07, which aimed to increase the likely success of applications to develop so-called tourist-related uses such as a 49 room hotel in Brumbys Road, South Warrandyte – recently proposed and rejected at VCAT.
unfortunately the saga continues. At next Tuesday’s meeting Manningham Council
will consider their officers’ recommendation as to what action the Council
should take in response to the Panel’s recommendation. And that recommendation
is…to ask the Minister to approve their 21.07 pretty much as originally
The Officers’ ‘Consideration of Panel Report’ runs to 13 pages and is similar in quality to the proposed C117. What is quite clear here is that Manningham Council has a vision for the green wedge which is at variance with the planning scheme. In their view the green wedge is an opportunity for economic development, by which they mean that Council should be free to allow commercial developments currently not permitted by the Planning Scheme. Although C117 itself was quite opaque in its wording, necessarily since its intent was at variance with the controls on the green wedge zones, its aims are clearly expressed in a March 2017 letter to the Minister, which complained that
RCZ provides limited autonomy for the operation of tourism and related uses due
to the overriding restrictions contained in Clause 57.
57, now renumbered as Clause 51.02, contains the ‘in conjunction’ condition,
which requires that a range of uses, including restaurants, residential hotels
and function centres,
used in conjunction with Agriculture, Natural systems, Outdoor recreation
facility, Rural industry or Winery
clear intention here is that such uses must relate to the essential purposes of
the green wedge. The pro-development lobby doesn’t like this condition so it’s
always under pressure. For example, then Liberal Planning Minister Matthew Guy
made a number of development-friendly changes to the Planning Scheme in 2013,
with his amendment VC103, including the removal of the in conjunction condition
from the RCZ. However, and fortunately, he overlooked the fact that the
condition continued to apply to all green wedge zones, including the RCZ,
because of Clause 57.
we have here is an ideological battle. On the one hand the green wedge,
legislated over forty years ago to contain the urban sprawl by creating a
series of green wedges between growth corridors, to be the ‘lungs of
Melbourne’, where the focus would be on conservation and agriculture. On the
other, people to whom the green wedge is vacant land to exploit for financial
The use of the word ‘autonomy’ in the Council’s letter to the Minister is revealing – and extraordinary. Their idea of autonomy is evidently to be free of the restrictions of the State Planning Scheme – without which Melbourne would have no green wedges.
The Council officers’ report starts by acknowledging the purpose of the proposed Clause 21.07:
Municipal Strategic Statement to give greater support to tourism in the Rural
Conservation Zone (RCZ)
is significant because the Council’s original ‘Explanatory Report’ was not so
clear, saying only that it proposed to
the Municipal Strategic Statement at Clause 21.07 to improve guidance around
what types of land use and developments are appropriate in Manningham’s rural
So at least the intent of the amendment is now explicitly acknowledged. However, the rest of the officer’s report amounts more to advocacy than argument. For example, the ‘Officer’s (sic) response’ at 2.19 says
Clause 21.07 provides Council and applicants with clear direction on how to assess planning applications within the context of the RCZ.
Firstly, that was not what they said C117 was aiming to do, which was to support tourism. Secondly, no-one would object to the provision of clear direction in principle, but we don’t believe that C117 did that, and neither did the Panel. For this report merely to make this as a general claim, without even an attempt at supporting argument, is unconvincing.
officers’ report is significantly wordy and confused. Consider this from Para
often tension between policies and zoning provisions in the planning scheme.
Having an overarching strategic framework to guide the interpretation of often
competing policy and zone objectives is imperative if a balanced outcome is to
If there is tension between different parts of the planning scheme then this is a shortcoming, a drafting problem. To add an ‘overarching strategic framework’ to guide ‘interpretation’ is not a good idea. But of course, since C117 wants to encourage uses that are not allowed by the RCZ controls, an increase in tension is what C117 proposed – as the Panel pointed out. But..the officers go on to say
The Panel’s argument that the proposed policy at clause 21.07 will exacerbate the tension between policy and zone controls is not supported.
They are claiming, apparently, that their amendment pressing for
allowing developments not allowed by the RCZ controls won’t increase tension?
And black is white?
C117 was a threat to the green wedge. The Planning Panel did a first class job of identifying its problems and flaws. The officers’ report continues to push it, in a wordy document the intent of which is clear but the arguments not. We will find out at the next Council meeting how the Councillors respond. Does the Council support the green wedge concept, or is development the key to happiness?
Community Panel delivered its recommendations to Council at the November
meeting of Council, on 27/11. The report
containing the recommendations was presented by Panel members Yolanda Silveri
and Wayne Kinrade. In receiving the recommendations the Council resolved that a
response be produced for the December Council meeting. The purpose of this
rapid response was not explained, but a possible explanation is that the
Council wished to qualify the Panel’s recommendations as terms of reference for
the Officers preparing the GWMP.
The Panel recommendations with the initial Council responses was duly on the agenda for consideration at the December meeting. It is not known by whom the Council responses were prepared, or under what instructions, but judging by Cr Clarke’s defence of one of them it appears that he was involved. You can read the recommendation and initial responses here.
to the Panel’s recommendation that a ‘broad scale land management plan’ should
be produced to identify areas of high biodiversity values, the Council response
was that this was not needed. Cr Perkins moved an amendment, asking that this
line be deleted. He said it was unduly harsh and not justified, and that the
community recommendation should go through to the team preparing the GWMP. Cr
Brooker agreed, saying that the preparation of such a land management plan was
logical, and that even if it turned out that the resources were not there to
carry it out that the recommendation should be considered by the GWMP preparation
team. He said he wasn’t sure that it was required, but he wasn’t sure that it
was not, either. Cr Dumaresq also supported the amendment, ie he supported the
broad scale land management plan recommendation.
against the amendment Mayor Egan said the following:
have a broad brush land management plan over the whole Shire would be millions
and millions of dollars. We are not a Council that’s resourced that well. We
need to target where we know where we’ve got hotspots or we think we know.
We’ve got the Abzeco report which has some data, a lot of that mapping was
proved in C81 and C101 wasn’t correct. We need to actually fine tune that, and
if it means a patchwork quilt over the shire to actually find those
biodiversity hot spots over the Shire, that’s what we need to do. But not over
the whole Shire, we’d be here for hundreds of years, we just can’t do that. The
Panel’s expert opinion on biodiversity, Cam Beardsell, he actually said that
biodiversity wasn’t decreasing it was actually increasing, and he actually
attributed some of that to the landowners. I’ve got it on tape. So therefore I
do not support this amendment.
So, we can’t
afford a broad scale land management plan so we’ll apply a patchwork quilt to
the Shire, but not the whole Shire. And Cam Beardsell reckons biodiversity is
on the up, so we don’t need to concern ourselves.
Beardsell actually did when he spoke to the Panel was compare the Nillumbik
green wedge now with the Nillumbik green wedge in the nineteenth century, when
extensive logging was laying waste to tracts of bush and feral dogs were
killing the indigenous fauna. He was suggesting that in stopping the harm done
directly by logging and indirectly by introduced species the ecosystem was
given an opportunity to improve, and further implying that continuing our
efforts to control our negative impacts on the landscape is the important
thing. He most definitely did not say biodiversity, don’t worry about it!
was lost in what became a familiar 3-4 vote, with Mayor Egan and Crs Ashton,
Clark and Rankin voting against the broad based plan, and Crs Brooker, Dumaresq
and Perkins voting for.
Then there was a discussion of recommendation 27,
‘Right to farm’. The second part of this recommendation is to
bush block conversion to agricultural or pastoral use, or any other use that
would otherwise degrade/impact vegetation and biodiversity values.
The Council response was to reject this part ‘because of its absoluteness’.
Cr Dumaresq moved to amend this response by supporting the recommendation. He
The idea that
you start grazing heavily out the back
of North Warrandyte on a bush block with
a 15 deg slope or greater, mostly shaly, and as soon as you remove trees and
undergrowth you end up with erosion and all the worst things that we do get in
this area when we remove a lot of plants.
this motion, Cr Ashton spoke as follows:
I think we all agree that we don’t want to see grazing animals or the
conversion of biodiversity land to grazing or clearing. Um, I think that what
we’re trying to get at here is that there are already planning controls and
decision making. We have ESOs, we have RCZs, and we do need to make sure that
people that abuse the landscape are pulled up and are stopped, but, I do think
that there are, many of us have land that has cleared grazing land and has good
biodiversity at the same time, and I think that again, I don’t find the Panel’s
language as in ‘discourage’ as too harsh, um, so if we can stick with
‘discourage’ and rely on planning controls, decision making and also that
famous land management plan I think that’s good and also I think very much
education so I agree we take it out um we need it’s really hard to do this
stuff on the hop when I’ve spent weeks looking at it beforehand and others
haven’t so for the moment I think I’ll leave it as it is
Cr Clarke then
spoke incomprehensibly about the absoluteness of the recommendation.
The vote then took place, surprisingly given Cr Ashton’s remarks, along the established 3- 4 lines, with Mayor Egan and Crs Ashton, Clarke and Rankin voting to reject Cr Dumaresq’s amendment.
The first part of the Panel’s recommendation 2 was:
to establish a GWMP advisory
committee. Subsuming these responsibilities within the Environment and
Sustainability Committee has led to a reduced focus on monitoring GWMP
The Council response was ‘partial support’ to this, which seemed to
mean it did not support it. Cr Brooker moved that it be supported, saying that
given the expertise and workload required to administer a GWMP a dedicated
‘technically competent’ committee was justified. Cr Ashton didn’t want a GWMP
committee because she said it would only focus on the environment and would
want to resurrect C81 and C101.
Cr Brooker’s amendment was lost on the now familiar 3-4 vote.
An interesting if unedifying discussion concerned
Minority Report #2, the Green Wedge Management Authority:
Advocate for the establishment of a
body that provides expert advice and support to both state and local government
on green wedge issues.
The Council response to this Panel recommendation was ‘not
supported’. Cr Perkins moved that it be supported, albeit with a change of name,
so it was not called an ‘authority’. He couldn’t see why an expert body to
provide support and share knowledge about green wedge issues would not be
welcomed. Only Cr Dumaresq agreed with
Cr Perkins, Cr Brooker mistakenly assuming that because it was referred to as
an ‘authority’ it was another layer of bureaucracy.
At this stage we could wonder what was the purpose of the
Community Panel exercise. As a non expert Panel with only six meeting days and
the broadest terms of reference its recommendations were always going to be at
most suggestive input into the GWMP process, but presumably indicative of
community expectations. Why blunt the Panel’s recommendations as input to the
The draft GWMP is due for release in March, so the
community will have an opportunity to check progress and make submission then,
but in the meantime, the discussion at that December meeting was interesting.
The C117 Planning Panel’s report has been released by the Manningham Council. It turns out to be a major win for community involvement and for the values of the green wedge in the face of the usual commercial pressures. It is also evidence that the system can work as we would want it to. The Panel left no doubt that it understood the essential purposes of the Rural Conservation Zone and of the green wedge generally.
C117 is an amendment proposed by the Manningham Council essentially designed to allow more tourist development in the green wedge and Yarra corridor. The council claimed that agriculture is declining and that in the interests of the ‘economic viability’ of the green wedge more ‘tourist oriented’ development needs to be encouraged, notably including a ‘tourist cluster’ in South Warrandyte. A development case in point was last year’s proposal for a 49 room hotel in Brumbys Road, South Warrandyte, rejected by VCAT in January last year. C117 clearly aimed to improve the chance that this kind of development would be approved – at the expense of the green wedge.
Although the amendment targets only Manningham, the issue is alive for all green wedges, and all green wedge Councils, including Nillumbik, would be taking a keen interest.
Because there were community objections the amendment was subject to a State Government ‘Planning Panel’. Panels are appointed by Planning Panels Victoria, and in this case the Panel’s Chair and only member was Mr Lester Townsend. Mr Townsend has been a member of Planning Panels Victoria since 1997, and a Senior Member since 2005. He is also a member of the Advisory Committee which is reviewing the entire State Planning Policy Framework.
The task of a Planning Panel is to conduct a hearing in which Council and all objectors and other submitters are heard, and to prepare a report as a recommendation to the Minister and the Council. The C117 hearing was conducted last November, and heard from 27 submitters and the Council over three days. Our report of the hearing was entitled ‘C117: Magical Mystery Tour’, because at the end of it we had no idea what the Panel was going to say. Well, the Council has just made the Panel report public, so mystery no longer. The outcome is stunning, in a good way.
The contentious part of C117 is a modified clause 21.07 in the MSS, or Municipal Strategic Statement, relating to the ‘Green Wedge and Yarra River Corridor’. Its clear intent was to allow more tourist development proposals for the green wedge to be granted permits. At the hearing James Livingstone, the WCA’s expert witness, suggested that the Brumbys Road residential hotel proposal, approved by Council but rejected by VCAT, would have had an increased chance of succeeding under C117. The Panel quoted from this VCAT decision, and concluded:
- Stronger support for tourism uses in the green wedge would inevitably tip the balance more in favour of such uses and this would necessarily be at the expense of other policy outcomes. If this were not the case, then the policy would do nothing.
The report found that the economic development opportunities supported by the policy would inevitably be at odds with the purposes of the RCZ, the Rural Conservation Zone, which are clearly aimed at conservation.
The Panel’s report also revealed something not previously made public: in March 2017 the Council approached the Minister, requesting a review of the list of uses prohibited in the RCZ. This is noteworthy because in the associated reports exhibited to the public with C117 the Council says that it does not wish to change the zone from RCZ. But they apparently did want to change the RCZ itself!
The Panel recommended that the Council abandons its proposed changes to 21.07, supported by these summary points:
- A decline in agricultural employment in the green wedge may have broader economic development issues for Manningham but it does not imply a need to replace those jobs within the green wedge.
- The policy would encourage economic development at the expense of green wedge values.
- The policy would exacerbate the tension between policy and zone controls.
- Council’s vision for tourism goes beyond the scale of activity permitted under current controls.
- There is no clear planning justification for supporting tourism clusters.
The report also mentioned potential conflict with bushfire planning provisions, and possible confusion in the relationship between the amendment and the Council’s own tourism policy.
In addition to the amended 21.07, C117 had two other parts, both in section 22, Manningham’s Local Policy Framework.
First, a revised 22.19 concerning outbuildings. This has the effect of applying the controls already in place in the Low Density Residential Zone to the RCZ as well. Most objectors had no problem with this, and the Panel only recommended a minor but material fix to a policy in
relation to the purpose of outbuildings.
The third part of C117 was a new clause 22.20, concerning non-residential uses. This clause the Panel accepted but with major editing, to:
- remove text dealing with strategic
issues rather than specific applications
- remove text that duplicates the
purpose of the RCZ
- remove text that lack specificity
by relying on things being ‘appropriate’ when It is not clear precisely which
areas or outcomes are ‘appropriate’
- not introduce additional
objectives that are covered by other clauses in the scheme
For example, this ‘policy’ was removed:
- Uses that contribute to the economic or tourism development and employment opportunities within Manningham are encouraged in appropriate locations.
On the grounds that it was a strategy not a policy, that it duplicated a condition in the RCZ, and that ‘appropriate’ was undefined.
We are not necessarily surprised these days when a government report is equivocal, shirks the difficult issues and attempts to rationalize a conclusion already arrived at. This report is not one of those. This is an example of the system of checks and balances working. The outcome is also a result of serious community involvement in the issue, as manifest in the 27 submissions – without which there would have been no Panel.
We now await the response of the Manningham Council to the Panel’s report. They may follow its recommendations, they could choose to abandon the entire amendment, or they could approach the Minister to press for a different outcome.
The Nillumbik Council has put a significant community focus on its refresh of its Green Wedge Management Plan (GWMP). Following an extensive series of informal and formal community meetings the culmination was the employment of a ‘community panel’ in a process called by consultants Mosaic Lab ‘deliberative engagement’. The task for this panel was to come up with recommendations to Council to guide it in its preparation of an updated GWMP.
Ten thousand invitations were sent to Shire Residents to serve for five full Saturdays – which turned out to be six – and from acceptances some 40 were selected to represent the demography of the shire in terms of age, gender and location, with the tweak that 50% were to be rural. The actual numbers on day one were 23 women and 19 men, of which 23 were rural and 19 were from the towns.
At the outset the panel was provided with a comprehensive report of the lead up community engagement process, a copy of the current GWMP and a 179 page ‘Background Report’ prepared by Council officers. Notably, the panel was not directed to address particular issues and nor was it subject to any ideological standpoint.
Nillumbik’s is one of twelve green wedges, all of which exist in the face of the constant pressure to subdivide and develop because of the existence of a complex legislative and regulatory framework – of which municipal GWMPs are a small part – often referred to as the ‘planning scheme’. Most Melburnians would have some familiarity with the green wedge in reality and as a concept. It’s the bush and farmland, the green spaces between the growth corridors, often referred to as the ‘lungs of Melbourne’. The end of the urban sprawl. But very few have much, if any knowledge of the planning scheme – and this certainly applied to the community panel: most knew little of the planning scheme, and few had previously read the current or any GWMP.
Does this sound like a great idea? Certainly it is innovative, but why would you gather 40 non-experts to address such a complex task? They don’t understand how the planning scheme works and they don’t know what discretion a municipal council has within it. Furthermore, the Nillumbik green wedge does not ‘belong’ to Nillumbik: it is an asset of the whole of Melbourne, as are all the green wedges. So what was the Council’s reason for embarking on this project? Geoff Lawler, the Council’s consultant overseeing the entire community consultation project, suggested that the aim was ‘social cohesion’, but what that might mean in practice has not been explained. But an interesting exercise nevertheless. Forty strangers in a room for several full days spread over three months, working together to agree on some recommendations, starting pretty much from scratch. One does wonder what the Council had in mind when they adopted this approach.
The Panel process was run by facilitators from a company called Mosaic Lab who specialize in this so-called ‘deliberative engagement’ process. Given the politically charged context of this review there could have been some apprehension about the tenor of the Panel process, but the Panel’s work program was so programmed and subject to management in accordance with decision-making and conduct protocols that good order was never in doubt. Work was substantially done in small groups and significant decisions required 80% agreement of the whole panel.
The first three Saturdays were in the nature of orientation. The Panel heard from a range of speakers who were in the main selected by the Panel, drawing from a list resulting from nominations and votes in the community consultation phase, and from anywhere else. Speakers included
- Professor Michael Buxton, planning academic, who referred amongst other things to small-lot restructuring projects implemented in the Yarra Ranges when he was a Councillor there.
- Geoff Lawler, who described the idea of ‘buffer zones’, a strategy which encourages more subdivision just outside the urban growth boundary to act as an intermediate settlement density zone at the urban edge of the green wedge. The panel showed no interest in this idea.
- Craig Laplsey, ex Emergency Services Commissioner
- Cam Beardsell, well known ecologist from Parks Victoria. He sketched the broad progress towards conservation in the Nillumbik Green Wedge since the nineteenth century. And described a significant contributing factor to the kangaroo population boom in recent times: the proliferation of dams, allowing kangaroos to proliferate away from natural waterways.
- Penny Croucamp, a senior DELWP bureaucrat, who talked about the native vegetation removal rules, illustrated with very dense slides.
These presentations were brief, and although time was allowed for questions some panel members felt frustrated by a perceived lack of focus, that answers were being sought without sufficient clarity about the questions.
A presentation of a different kind was from George Apted, orchardist. This was in the nature of a brief case study about a significant agricultural business in the Nillumbik green wedge and the problems it faces – from larger scale businesses beyond the green wedge and from encroaching urban development. The state of agriculture in the green wedges is a major and complex issue, but well beyond the capacity of the Community Panel to address.
The end of this phase saw the panel write a long and diverse list of ‘issues’ on bits of paper, and have them blu-tacked to a wall. It was a sprawling and diffuse list, but it was a start. Day 4 saw these issues transformed into a working list of draft, potential Panel recommendations, which then became the focus of Mosaic Lab’s process. The draft recommendations were entered into a shared word processor, Google Docs, and subject to development by three person groups – each group at a separate table and with the recommendation of interest open on a notebook computer. All text, including the recommendation itself and any ‘rationale’, was created and entered by panel members.
During a break Mosaic Lab printed out each of the 41 recommendations in a format which allowed each member to add their rating and any comments. Ratings were on a five point scale, but with descriptions ‘love it’, ‘like it’, ‘can live with it’, ‘lament it’, ‘loathe it’ and ‘confused’. All recommendations were laid out on tables and Panel members walked around adding ratings and comments until all members had individually rated all recommendations. The result: 29 of the 41 recommendations received in excess of 80% support, meaning they were rated at ‘can live with it’ or higher.
Days 5 and 6 were essentially devoted to the further development of the recommendations prior to a final vote on the last day, but some considered that some processes were problematic. Council officers supplied substantial feedback about the clarity and practicability of the recommendations, but no time was reserved to ensure that this feedback was processed. And Day 5 saw an informal process which aimed to achieve some rationalization by combining some recommendations with others, but which due to Planning Scheme misunderstandings created logical conflict and reduced the validity of the prior voting – but these issues were resolved.
The final vote was noteworthy for being conducted on smartphones. As each recommendation was displayed on a big screen each Panel member voted on his or her smart phone using the established scale. The result was that the score was available immediately.
And with the additions of some trimmings, such as a preamble, that was the Panel’s output, although mention should be made of the ‘minority report’ issue. There was supposedly provision for the inclusion of recommendations which received less than 80% support if at least three panel members nominated them. In the event, tacked on to the end of the recommendations was a 23 page dissertation which was prepared independently, which the Panel as a whole had never seen, let alone voted upon. Several panel members have expressed dissatisfaction, suggesting that despite its ‘Minority Report #1’ heading it was not a product of the panel process and should not be included with the recommendations.
Speaking of social cohesion, mention should be made of the PALS-orchestrated walkout. Not that it unduly influenced the proceedings of the Panel, since it only involved three Panel members and for only one day, but it does relate to significant political context. PALS published on their Facebook page what they called an ‘Urgent Open letter re Community Panel’ to ‘PALS, Nillumbik Shire CEO and Councillors’, and ‘All Nillumbik Shire Inhabitants’. It expressed dissatisfaction with the make up, conduct and direction of the Panel. This was a surprise to many of the remaining Panel members who could not recall these issues being raised. Some Panel members expressed shock at apparently abusive comments directed at the Panel on social media, but none of that was reflected inside the Panel. It is not known what PALS, or the three Panel members who absented themselves on Day 4 hoped to achieve, but in any event they elected to return for Day 5. Since Day 4 was the first really constructive day in the program it was probably not the best one to miss.
The recommendations are now public and with the Council. You can see them here. Broadly speaking, and aside from the so-called ‘Minority Report #1’, they represent support for the continuing and even stronger maintenance of Nillumbik’s green wedge.
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.
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.
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.
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.
The 43 Nillumbik residents selected to serve on the ‘Community Panel’ first got together on the evening of August 9, tasked with addressing the question: “What is the best way for us to manage Nillumbik’s Green Wedge now and in the future?” In other words, to review the Council’s 2011 Green Wedge Management Plan. Ten thousand randomly selected Shire residents had been invited to nominate as participants. Acceptance indicated a commitment to attend a schedule of five full Saturdays over three months. From acceptances, 40 plus a few extra were selected, 50% from rural addresses and the other 50% from Eltham and the townships, aiming to reflect the age and gender distribution of the Shire.
The first three days were largely preparatory. Selecting and hearing from relevant speakers on a range of green wedge related topics, and moving to the generation of a long list of issues of interest. This preparatory phase was criticized by some participants as inefficient and lacking focus – but it was a start.
Day 4 saw the Panel reduced to 33 members. Health and unavoidable issues had already taken their toll, but this morning additional attrition had been orchestrated by lobby group PALS, ProActive Land Owners, a closed Facebook group which we covered in ‘Whose PALS are they?’ back in August.
PALS wrote what they called an ‘Open Letter’ to Councillors, to the Nillumbik CEO and to ‘all Shire residents’, also posted on their Facebook page, complaining about the Panel process. How residents who are not members of PALS Facebook group might receive this letter is unclear. It relates that a ‘PALS Working Group’ was ‘convened’ to hear reports on how badly the Panel was going from disaffected Panel members. What it heard was not good, and included ‘how inhospitable and hostile the setting has been’. This was a surprise and quite discomfiting to the ongoing Panel, seeming to come out of the blue. Members we spoke to said they had seen no evidence of hostility and hardly any substantial disagreement, not surprising given the preparatory nature of these first three days.
Some of these departing members relayed their ‘reasons’ for leaving in phone calls to the organizers, and these reasons were summarized on a slide for the Panel, as follows:
Inadequate landowner engagement and under represented on the Panel
The initial plan was that the Panel should be selected based on the demography of the Shire, but PALS pressure on the Council increased rural residents representation to 50%.
Panel should not include representatives of the whole community, should only have been owners and residents in the green wedge.
PALS is a vocal lobby group who believe that they own the green wedge. They don’t recognize that without the city the green wedge concept would be meaningless, and that our green wedge is an asset of the City and the State.
Not had access to a balanced expert advice from a full range of speakers
Several Panel members have been critical of Panel processes, including the lack of early direction, and this extended to speaker selection. There were many interesting speakers, but in the absence of a prior question to answer their relevance to what was to come was sometimes lacking. But speaker selection was totally open, and most speakers suggested and available were engaged, including a prominent PALS spokesperson.
Panel has not been directed to focus on the green wedge to the exclusion of other areas.
It’s hard to know what this one meant. Did they see no role for the townships in supporting the green wedges?
One of the characteristics of PALS publications, whether it be this open letter or their 45 page pre-Panel submission, is that they are almost entirely devoted to criticisms of other groups, essentially on the grounds that the green wedge is no-one’s business but theirs.
Whatever one thinks of the merits of this Community Panel exercise as a way of updating Nillumbik’s GWMP, the fact is that the Shire is spending the best part of and perhaps even more than half a million dollars on having the community engage with the process. The process started last May with a program of community meetings involving community groups and individuals in information sessions, discussions over coffee and community workshops in various locations. The Panel process itself was designed and is being run by Mosaic Labs, consultants experienced in community panels. Panel members report no indications of attempts to influence review outcomes.
Other than surprise and disappointment, the reaction of the Panel to the departures last Saturday was to remark on the loss to the Panel process of their views. To observe that surely the place to air their perspective was within the Panel, since that is its purpose.
There is another level of concern to consider here. According to the ‘About’ section of the PALS Facebook page, it was set up by ‘local landowner Karen Egan’. PALS was clearly effective in supporting her as a candidate for Council at the last elections, because she’s now Cr Egan. As a councillor Egan has, unsurprisingly, supported the PALS line, even to the extent of playing a leading role in having Council override its planning officers recommendations in favour of the environment, notoriously in the case of 2 Pigeon Bank Road, North Warrandyte, a case with which the WCA was involved in support of the local community.
But for a Councillor to be associated with a lobby group which is attempting to denigrate and invalidate a major Council program is inappropriate, to put it mildly. Especially since it was Cr Egan who moved the motion, at the Council meeting in August last year, to proceed with the review. The community panel approach – then referred to as a ‘citizens’ jury’ – was recommended to “broker conflict or to provide a transparent and non-aligned viewpoint.”
It has been put about by Geoff Lawler, the consultant engaged by Council to advise on the entire project, that Council’s underlying aim here is ‘social cohesion’. Good luck with that.
PALS, for Pro Active LandownerS, is a Facebook group which was ‘set up by a local landowner Karen Egan, which originated from the lack of representation of landowners within the council of Nillumbik’
These people are not shy in putting themselves forward. Recently a document was uploaded to their Facebook page, presented as a submission to the Community Panel set up as part of the GWMP review process. In the introduction it claims that
‘The current Council was elected in significant measure as a result of the coalescence of PALS to ventilate and advocate for the interests and rights of landowners in the Shire who are proud in their assertion of responsibility for the foundation, maintenance and majority ownership of Nillumbik’s cherished and widely envied Green Wedge.’
So given that landowner Karen Egan is now Cr Egan, their claim to be a successful lobby group would appear to be supported. And based on that they are suggesting that they have some kind of ‘mandate’. As nothing more formal than a Facebook group that claim would appear to be specious, but certainly they have a very focussed voice on Council.
Although submissions were not requested the PALS document is available to the Panel via an internet link, at the end of a 436 page document, along with every other bit of input received during the ‘community engagement’ phase of the project. Most of the document is an extended diatribe against all that is supposedly wrong with how landowners have been treated by the Council, the current GWMP, the planning scheme and all the ‘red tape’. Distributed though the document are what appear to be policy positions, such as
- ‘less (sic) controls and legitimate landowner/Council cooperation’ will result in an ‘improved Green Wedge’.
- More people should be encouraged to live in the Green Wedge to
- help accommodate Melbourne’s growing population;
- to contribute to the health of the community and the landscape.
- The GWMP should encourage people build or to start businesses in the Wedge
- Nillumbik should use the Dandenongs and the Yarra Valley as models to emulate in relation to the establishment of ‘profitable and viable enterprises’.
What PALS are doing here amounts to redefining the Green Wedge. No longer the ‘lungs of Melbourne’ or the place where the urban sprawl is halted, it is an opportunity for dream homes and for opening an array of businesses. No longer an asset of the world’s most liveable city, it exists for those who live there. Implicit in their position is that the current owners of Green Wedge land should be free to ‘look after’ their property as they see fit, and somehow that will result in healthy communities in a healthy Green Wedge.
Their vision is so at odds with the planning scheme, and so much further beyond what could possibly achieved by a recast GWMP, that they have been unable to come up with anything that would be suitable for consideration as part of the GWMP review process.
We wrote in May about Manningham Council’s C117, a proposed amendment to the Manningham planning scheme, in Tourist Clusters in the Green Wedge? At that time the amendment was in the ‘Exhibition’ stage, that is the proposal was open for community comment. Council has now received and reviewed 26 submissions on C117, 21 of which were objections. Because of the objections the Council has requested of the Planning Minister that the proposed amendment be submitted to a State Government Planning Panel.
Even when the intent is straightforward legislation is always complex, and this is certainly the case with the Planning Scheme. Amendments tend to increase this complexity, particularly if the amendments themselves are complex or badly drafted.
It is quite clear that C117 aims to allow more money to be made by developers out of tourism-related development. But what is not at all well-defined is specifically what will be allowed. For example, a clause to be added to the amendment is this ‘policy’ statement:
‘Uses that contribute to the economic or tourism development and employment opportunities within Manningham are encouraged in appropriate locations.’
Since at the core of the planning scheme are the Green Wedge zones and their schedules, specifying unambiguously what uses will be allowed in each Green Wedge Zone, what might be the impact of including such a statement in the Planning Scheme? Could this ‘policy’ override the Zone schedules? At best this sort of clause is sloppy, leading to expensive and time consuming hearings to resolve at VCAT. At worst it is underhand, leading to determinations at odds with the underlying intent of the planning scheme.
And what is meant by ‘appropriate locations’? Included under ‘Economic Development Issues’ is this ‘strategy’:
‘Cluster tourism development opportunities to enhance strategic position.’
We know from the ‘Position Paper’ that is incorporated in the proposed amendment that one ‘cluster’ the Council has in mind is in South Warrandyte, along the Ringwood Warrandyte Road. But there is no actual definition of the term ‘cluster’, and no convincing justification for allowing more ‘tourism’ in South Warrandyte. And nor does the amendment expand upon what might be the meaning of ‘enhance strategic position’. Quite apart from the problematic intent of C117, its lack of clarity is to be deplored.
Adding to the puzzle have been comments by Cr Paul McLeish, who was quoted in the Warrandyte Diary. He claimed that C117 would ‘equip the Council with’ a ‘framework’ which allowed it to consider applications for ‘non-permitted uses’. You might think that sounds alarming, although it is not obvious what part of C117 as it has been published so far does actually does this.
Given that C117 has its roots in proceedings dating back to 2014, the current lack of clarity reflects poorly on Manningham’s ability to deliver the level of environmental stewardship required of green wedge Councils. It also places residents at a disadvantage as they prepare for October’s panel hearings.
Experience in other Green Wedges is that tourism and other development is gradually urbanizing them. Not infrequently the situation is exacerbated by the excessive bulk and scale of the buildings and associated infrastructure. You can read Alan Thatcher’s paper on this issue here.
The State and Local Planning Schemes specify the minimum lot size allowed in subdivisions in the Green Wedge. This minimum size is dependent upon zone, and in Nillumbik the predominant zone is Rural Conservation Zone, either RCZ3, minimum size 8 ha, or RCZ4 or RCZ5, minimum size 40 ha. Small lots, or ‘undersized lots’, are lots smaller than these sizes, created prior to the institution of the Planning Scheme. In Nillumbik, according to the Green Wedge Management Plan (GWMP), it is estimated that some 3,300 lots are undersized, or 81% of all lots in the Wedge, and that about 710 of these currently vacant, ie no dwelling has been constructed on them.
The granting of a permit to build a dwelling in the Green Wedge, on any sized lot, is subject to the application satisfying the conditions imposed by the Planning Scheme, which essentially include protecting the environment and landscape values. The purposes of the Rural Conservation Zone include, in addition, to provide for ‘agricultural use consistent with the conservation of environmental and landscape values’.
Although these conditions apply to all Green Wedge lots, because small lots imply a higher residential density than is consistent with the Green Wedge, applications to build on them face an additional challenge. Both Nillumbik’s Municipal Strategic Statement and the current GWMP contain reference to small lots, discouraging development on them and encouraging consolidation with other titles. You can read an information paper about the small lots issue here.
VCAT rejected an appeal against Council’s refusal to grant a permit to build on a Cottles Bridge property earlier this year, and a part of the Tribunal’s argument was that the area to be cleared represented 50% of the 0.76 ha total area of the property.
Local lobby group ProActive Landowners, or PALS, take the position that property owners should be able to do what they want on their own land. While on the face of it this position has merit, a moment’s thought makes it obvious that this position is inconsistent with Melbourne having Green Wedges at all. The Wedges are an asset of the whole of Melbourne and the State, and their existence depends upon the maintenance of restrictions on development in the interests of the whole community, not just the owners of Green Wedge land. The Green Wedge does not exist at the discretion of the landowners, but at the discretion of the State Government on behalf of the community.
Nillumbik’s GWMP, prepared in 2011, listed as a high priority action for Council to ‘Prepare a concise paper on small lot development to recommend actions to discourage the further rural residential development of small lots’. That GWMP was prepared under a previous Council, and if any work has been done against that ‘Action’ it has not been made public.
But last August the Council approved the expenditure of $115,000 on a fresh review. That review is in progress at the moment, and although its terms of reference have not been made public, we understand it aims to provide guidance to landowners as to the suitability of under-sized lots for a dwelling. This is a worthy objective, but how might it be met? Will this review assess every one of the undersized lots in the Shire with a view to publishing some kind of score for each one, indicating the likelihood that an application to build a dwelling would be approved? Given the number of lots and the expertise required to evaluate each one, this is unlikely. It would be surprising if this new review could do much more than register and map the lots.
In any case, we should wish the project well. But since it is being paid for with ratepayers’ money we hope the Council will be more forthcoming with progress reports than has been the case to date. Without being cynical about it, we should also be alert for subversion of the project in the interests of relaxing the Planning Scheme at the expense of the Green Wedge. After all, this Council has recent runs on the board in that area: remember their role in relation to the 2 Pigeon Bank Road, North Warrandyte application, in which they overturned their own officers’ recommendation to reject it, only for the applicant to finally withdraw the application after his attempt to have objections from the WCA and others disallowed was rejected by the Supreme Court.
We know you want to spread the word about the value of our Green Wedge, particularly these days when it seems that it’s under more threat than usual. That’s why we have produced a brochure for you to share. Have a look, we think you’ll like it.
You can print it out, share electronically, and if you would like some printed copies to letterbox your street, please email us.
The brochure is labelled ‘Wedge 1’, because it is the first in a planned series, covering various aspects of the wedge. Wedge 1 starts by reminding us reminds us that it was Liberal Premier Sir Rupert Hamer who played a key role in implementing the Green Wedge concept for Melbourne, back in 1971 when he was Minister for Local Government.
The Green Wedge is protected by a legal framework that starts with the Planning and Environment Act 1987 and includes the Victoria Planning Provisions and also local planning schemes. All development takes place within this framework. Municipal Councils must assess development applications in accordance with these rules. Disputes between applicants, Councils and the community may be resolved at VCAT, the Victorian Civil and Administrative Tribunal.
Green Wedge Councils are required by the State Government to prepare a Green Wedge Management Plan and to review it periodically. The current Nillumbik GWMP dates from 2011. It is a substantial document in two parts. The first part contains a wealth of data about the Nillumbik Green Wedge and also strategic and descriptive statements about the Wedge. It could be described as an expanded management guideline, as well as a non-legal communication with the community. It also lists actions which the Council plans to take – 113 of them, including, for example ‘People and Communities, Action 1.1’, which was to ‘Prepare a concise paper on small lot development to recommend actions to discourage the further rural residential development of small lots in the Green Wedge’. Both parts of the current plan can be downloaded from here and here.
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. No mention was made of the small lots exercise, presumably indicating it was unchanged and outstanding. 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. An overall description and a timeline for the project are on the Council’s website here.
The Green Wedges are always under development pressure, 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 current plan, which removes the reference to their own Green Wedge as a ‘strategic focus’. 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.
One high profile issue may be the so-called ‘small lots’ in the Wege. The Planning Provisions specify minimum lot sizes, meaning that no subdivision will be allowed to create lots below this minimum. There may be several hundred of these small lots in Nillumbik, having been created before the current rules came into effect. These lots have been referred to as ‘stranded assets’, implying that the owners are caught with a property which they cannot enjoy. But the Green Wedge was established as a concept and in law in 1971, over 46 years ago, so if anyone is regarding these assets as ‘stranded’ then it has been self-inflicted, not imposed by regulations.
Another significant issue concerns what is sometimes referred to as the ‘economic viability’ of the Green Wedge. Manningham Council is currently proposing an amendment to their planning scheme, C117, the general thrust of which is to acknowledge a decline of agriculture in their Green Wedge and to propose in response the encouragement of a range of mainly tourism related commercial activities. Unless the developments are properly controlled they will reduce rather than increase the amenity of the Wedge. This issue is relevant to all Green Wedges, including Nillumbik.
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.
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:
Dr Bruce Lindsay
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.
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.