Nillumbik Council agrees on failure..

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?

Stop press

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.

150 Seat Restaurant threatened for the Green Wedge in Yarrambat

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!

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

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:

Fill type
Dry
Wet
Grassy

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.

The Economy of Nillumbik

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.

 

GWMP Adopted, no cigar..

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:

  • Create a place-making service for the townships to strengthen their identities and attractiveness as service, population, tourism, community and cultural centres

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:

  • The 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 implemented

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.

Manningham rejects Planning Panel report

Manningham rejects Planning Panel report

“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 how.

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 richard.wynne@parliament.vic.gov.au

Manningham persists with C117

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.

But 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 proposed.

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

The existing RCZ provides limited autonomy for the operation of tourism and related uses due to the overriding restrictions contained in Clause 57.

Clause 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, 

Must be used in conjunction with Agriculture, Natural systems, Outdoor recreation facility, Rural industry or Winery

The 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.

What 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 gain.

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:

Change the Municipal Strategic Statement to give greater support to tourism in the Rural Conservation Zone (RCZ)

This is significant because the Council’s original ‘Explanatory Report’ was not so clear, saying only that it proposed to

Amend 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 areas

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.

The officers’ report is significantly wordy and confused. Consider this from Para 2.32:

There is 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 be achieved.

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?

Council Contemplates Panel Recommendations

Council Contemplates Panel Recommendations

The GWMP 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.

In responding 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.

In speaking against the amendment Mayor Egan said the following:

To 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.

What Cam 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!

The amendment 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

Discourage 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 said that

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.

Speaking to 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 implementation

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 GWMP process?

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.

C117 Panel Report Stuns!

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.