PPV Volume 10 No 1

1.  Bellarine Peninsula Statement of Planning Policy Report – a tail of state government interference

We comment in the editorial below that the Inverleigh combined wind farm and solar farm panel report was not released until three years after it had been submitted to the Minister. In contrast to this, the advisory committee appointed to Bellarine Peninsula Statement of Planning Policy, Distinctive Areas and Landscapes Standing Advisory Committee – Referral No 2 (AC) [2022] PPV 41, on the day before the commencement of the Hearing, was advised by the Minister for Planning that the Committee’s time to review documents, consider issues and write its report was reduced from 40 business days to 19 business dates (with an 8 July 2022 final date). There must have been an election in the air.

The Committee wryly observed that it “was able to meet its specified responsibilities, however, the significantly reduced report time meant it was not possible to include additional and helpful details.”

Further, and perhaps more significantly, the Minister for Planning amended the Committee’s terms of reference that limits its scope to address the following:

  • Matters raised by the Minister in the referral letter.
  • Recommendations to the Minister for Planning on the referred matter.
  • List of persons consulted or heard.

The original terms of reference required the Committee’s report to address the following:

  • An assessment of relevant state and local policy for each referred matter.
  • Recommendations to the Minister for Planning on the referred matter.
  • An assessment of submissions to the Committee.
  • Any other relevant matters raised during the Hearing.
  • A list of persons who made submissions considered by the Committee.
  • A list of persons consulted or heard.

The amended terms of reference gave rise in submissions as to the Committee’s scope. The Department of Environment, Land, Water and Planning (DELWP), as proponent for the amendment, submitted that the Committee was confined to:

  • considering only section 46AU of the Planning and Environment Act 1987 (P&E Act) when considering whether all Protected Settlement Boundary (PSBs), as defined in section 3 of the P&E Act, are appropriate
  • advising whether:

– each proposed PSB ensures the protection and conservation of the distinctive attributes of the declared area
– any amendment should be made to the PSBs (so long as any amended PSB ensures to protect and conserve the distinctive attributes for the declared areas).

DELWP submitted:

In other words the Committee is not being asked to advise whether the proposed PSBs are appropriate in a general sense. Nor is the Committee being asked whether the proposed PSBs result in a net community benefit or whether they result in an acceptable planning outcome.

Greater Geelong Council submitted that the Committee:

  • is limited to considering and advising on the PSBs
  • must adopt integrated decision making and explained:

That is, the Committee must integrate all relevant planning objectives in reaching its final recommendations. Council rejects any assertion that greater weight must be placed on the objects of Part 3AAB or on landscape and environmental matters over other relevant planning considerations.

    • the objects of Part 3AAB do not disclose any intent that fundamentally different tests be applied to the integrated decision-making process before the Committee.

Other submitters questioned DELWP’s interpretation and submitted:

  • the Proponent’s approach is fundamentally flawed
  • the Committee can, and is required to, have regard to environmental, social, cultural and economic factors that are relevant to settlement boundaries and PSBs
  • the P&E Act section 4 planning objectives apply to decision-making and consideration under Part 3AAB
  • the PSBs are unlawful because the BPSPP is invalid so they cannot be found to be appropriate.

The Committee sourced its own legal advice, with counsel for the Committee advising that:

….. I do consider the task of the Committee is not necessarily one of seeking to balance all planning considerations in an even-handed manner, without regard for the framework of the PE Act, and the place of SPPs within that Act. I say this because Part 3AAB in fact does appear to have been introduced to ensure protection and conservation of distinctive attributes, potentially at the cost of other considerations, where a declaration has been made. It will be for the Committee to consider the full range of factors which are relevant in a proper consideration of the purpose of SPPs, which includes questions of the future use and development of land, and for it to decide – on the facts and having proper regard to the broader relevant framework and the evidence – what its views are about the appropriateness of the proposed PSBs, having regard to the purpose of the SPPs.

The advice concluded that the Committee:

  • is not confined in undertaking its task, to only considering the words and content of section 46AU of the P&E Act
  • can have regard to other matters if they are relevant to understanding and considering the purpose of Draft Bellarine Peninsula Statement of Planning Policy (BPSPP) and whether a PSB is appropriate, as judged against that purpose
  • should not wholly accept the submissions made by the DELWP and Greater Geelong Council.

Accepting the legal advice provided to it, the Committee considered it can have regard to other matters if relevant to considering whether a PSB is appropriate.

However, it noted that this technical ability may not equate to a practical outcome. For example, there may be clear evidence that land needs to be excluded from the PSB area to protect and conserve a distinctive attribute. Under this circumstance, other matters should not be considered if enabling urban development on land that would threaten this protection.

Further, the Committee noted that the PSBs and the BPSPP, given where they reside, do not form part of any planning scheme and there is not an associated draft planning scheme amendment seeking to introduce them. Accordingly, the Committee considered the appropriateness of the PSBs based on achieving net community benefit, as sought by Clause 71.02-3 of the Victoria Planning Provisions, need not be addressed by it.

Overall, the Committee held that the Minister for Planning has sought advice on the appropriateness of PSBs proposed in a draft document, pending approval. The Committee considered whether each PSB is appropriate:

  • based on whether supporting and technical assessments can demonstrate they are needed to protect and conserve the distinctive attributes of the Bellarine Peninsula’s declared area
  • within the restricted scope set out in the referral letter from the Minister of Planning.

Turning now to substantive issues, Section 46AU of the P&E Act states:

Purpose of Statement of Planning Policy

The purpose of a Statement of Planning Policy for a declared area is to create a framework for the future use and development of land in the declared area to ensure the protection and conservation of the distinctive attributes of the declared area.

The Bellarine Peninsula region was declared a ‘distinctive area and landscape’ pursuant to section 46AO of the P&E Act. The declaration:

  • includes a statement that sets out the significance of the area to the people of Victoria (including the Traditional Owners of the area)
  • describes the attributes that qualify the declared area as a distinctive area and landscape
  • identifies the threats of significant or irreversible land use change that would affect the environmental, social or economic values of the declared area.

The area was redeclared on 16 September 2021.

The Committee’s report identifies a number of issues with the draft Statement under the following headings:

Land supply

The greenfield years’ supply figures for lots within existing settlement boundaries set out in Table 8 of the Bellarine Peninsula Settlement Background Paper should be reviewed on the basis that they do not reflect existing circumstances.

Are the proposed PSBs appropriate?

The Committee reached the following conclusions:

  • The fundamental basis for aligning the PSBs is flawed because it applied existing local settlement boundaries in the Greater Geelong Planning Scheme as a baseline.
  • Existing Greater Geelong local settlement boundaries cannot be directly translated into PSBs because they are intended for different purposes and may be either an overreach or deficient in protecting and conserving the distinctive features.
  • PSBs should be aligned with findings from technical assessments which responded directly to protecting and conserving distinctive attributes and features of the declared area.
  • The Bellarine Peninsula Statement of Planning Policy background work is not sufficiently robust or progressed to determine whether each PSB is needed to protect and conserve the distinctive attributes and features as outlined in section 46AV of the P&E Act.

Heritage and cultural significance

The Committee found:

  • The PSBs were not specifically shaped by Aboriginal cultural heritage, however the Bellarine Peninsula Statement of Planning Policy:
    • acknowledges the importance of Aboriginal heritage
    • identifies strategies and processes for protecting and preserving cultural heritage, and for promoting a better understanding of the traditional and contemporary culture of the Wadawurrung.
  • The Heritage Act 2017 requires a planning permit application proposing certain buildings and works on identified areas of cultural sensitivity to complete a Cultural Heritage Management Plan before any works commence.

Outstanding environmental significance

The Committee concluded:

  • There was insufficient information to explain how the PSBs are needed to protect and conserve the identified distinctive features with attributes of ‘Outstanding Environmental Significance’.
  • Further work is required to:
    • map the location of identified endangered flora and fauna to clearly show the locations of sites needed to be protected
    • strategically justify land that needs to act as a buffer between significant environmental assets and urban land
    • explain why each Protected Settlement Boundary is justified and appropriate to protect identified endangered native flora and fauna and Ramsar protected wetlands, particularly from the threat of significant or irreversible land use change
  • A PSBs should only be considered as an option after further work has confirmed its alignment is needed to protect and conserved a distinctive feature of Outstanding Environmental Significance.

Significant geographic features

The Committee found the Bellarine Peninsula Landscape Assessment:

  • is a comprehensive preliminary document which forms a sound basis for a more detailed assessment
  • was not intended to, and is unsuitable for, assessing the appropriateness of a PSB
  • does not clearly differentiate between a general rural view and a scenic view worthy of protection
  • does not sufficiently or clearly explain why the extent of land excluded from the PSB is needed to protect scenic views across the Bellarine Peninsula of rural landscapes and along the coast
  • does not support landscape related conclusions in the Bellarine Statement of Planning Policy
  • was not intended to inform PSBs, and therefore omits the necessary strategic thread between protecting and conserving the distinctive features and a PSB.

Further, the Committee found a green break:

  • is not a distinctive feature of an attribute set out in the P&E Act
  • is relevant to the Greater Geelong Planning Scheme through local planning policy and identified existing local settlement boundaries
  • can be referenced in the Bellarine Statement of Planning Policy
  • cannot be used to justify the alignment of a PSB.

Overall, the Committee recommended that settlement boundaries proposed in the draft Bellarine Peninsula Statement of Planning Policy not be identified as PSBs.

On 6 October 2022, in the lead up to the state election, despite the Committee’s recommendation, the Premier and local member for Bellarine, announced that it had delivered the Statement of Planning Policy for the Bellarine Peninsula’s ‘distinctive area and landscape’ (DAL) which included locking in the PSBs.

See also:

  • Guide to Planning Panels: Environmental policies > Distinctive Areas and Landscape Statements of Planning Policy

2. Problems with a proposed large heritage precinct

In Darebin C191dare (PSA) [2022] PPV 56, it was proposed to implement the recommendations of the Thornbury Park Estate Precinct – Report, Citation and Schedules. The proposed precinct includes 1,052 properties.

The Panel noted that the Thornbury Park Estate is large, “and therefore not without its challenges.” The precinct originated as a large subdivision. The Heritage Study notes:

Subdivisions, and hence precincts, of this scale are unusual on a broader scale and even more so at this level of intactness and/or consistency.

The Panel agreed with Council’s heritage expert that the precinct is legible as a Federation period subdivision, albeit with a varying degree of intactness. While the building stock is generally humble and unassuming, this should not detract from its ability to meet the threshold for significance at a local level. The buildings do not need to be completely intact to be designated contributory. The contributory and significant homes generally:

  • contribute to the character of the streetscape and precinct
  • were constructed during the period of significance
  • are intact, and those which are altered remain largely identifiable as an example of its type/period
  • comprise of single storey weatherboard homes with consistent front setbacks.

When viewed as a whole however, the Panel was not convinced that the precinct reads as a single, intact and cohesive precinct.

Specifically, in relation to the area east of Bracken Avenue Linear Park, the Panel observed that there are a higher number of non-contributory places compared to the remainder of the precinct. Within this part of the precinct, there are clusters of non-contributory places on a number of streets. The Panel considered that the number and location of these non-contributory pockets restrict the ability to understand that surrounding properties are interrelated within one precinct.

In relation to west of Comas Grove, the Panel observed that the land falls away significantly to the west of Comas Grove and the slope is particularly prominent along Strettle Street. The Panel considered the contribution the houses in this part of the precinct make to the precinct’s significance is significantly different to the contribution the houses east of Comas Grove make.

The Panel concluded:

  • The Thornbury Park Estate Precinct should be reduced in size.
  • Post-WWII housing does not contribute to the Thornbury Park Estate Precinct and the remaining properties in the reduced precinct should be designated non-contributory.
  • The Panel’s preferred Precinct meets the threshold for local significance to justify the Heritage Overlay.

See also:

  • Guide to Planning Panels: Heritage > Identification of precincts

3. Balancing heritage and environmentally sustainable development

In Darebin C191dare (PSA) [2022] PPV 56 considered above, a number of submitters raised concern that the proposed Heritage Overlay would prevent the achievement of higher energy efficiency of dwellings. Council invited the Panel to consider how it might approach the assessment of high performing sustainable homes in the context of the Heritage Overlay.

One submitter presented the Panel with a detailed submission on this issue. Among many other points, it was contended:

  • the Panel should consider a blended heritage and ESD approach to allow for the conservation of heritage properties whilst also recognising that heritage should be mutually exclusive to achieving high ESD outcomes
  • the Heritage Overlay should explicitly address ESD principles.

Another submitter referred the Panel to renovations of interwar period homes, submitting renovations:

  • typically involve the home being stripped back to the timber frame which will remove most of its embodied energy
  • don’t necessarily generate any less waste than a full demolition and re-build.

This submitter also made submissions in relation to her family’s intentions to build a PassivHaus home, (an ultra-energy efficient home that regulates its own temperate and humidity) which will no longer be realised if the Heritage Overlay is approved.

In response to submissions, Council engaged HVH to undertake a case study and investigate whether the introduction of the Heritage Overlay would likely impact the ability to achieve a 7-star NatHERS rating and a net zero emissions outcome.

The HVH Report summarised its findings as follows:

  • The analysis within the report has demonstrated addressing the impacts of climate change and producing high performing homes that are within a heritage overlay is achievable when renovating the property.
  • Within the context of the proposed Thornbury Estate Heritage Precinct, two typical Californian Bungalow designs were thermally modelled both pre and post a hypothetical renovation (one minor and one major). The aim was to determine whether a 7 Star NatHERS rating and a net-zero operational energy could be achieved while being consistent with the heritage significance of the local area.
  • Through careful design in regard to orientation, choice of technology and retention of key façade features, environmental and heritage outcomes can be achieved through:
    1. Improving the building’s thermal envelope – through reducing penetrations, significantly increasing insulation, and improving the thermal performance of glazing;
    2. Removing all natural gas appliances- and replacing them with highly efficient electrified alternatives – such as heat pump hot water systems, induction cooktops and reverse cycle air conditioning;
    3. Installing onsite solar PV – to reduce the consumption of electricity from the grid; and
    4. Purchasing 100% GreenPower – for any residual electricity consumed from the grid.

Council submitted the HVH Report:

  • provides a reliable basis that the introduction of the Heritage Overlay will not frustrate or prevent the achievement of environmentally sustainable homes and more specifically achieving a 7-star rating and a net zero emissions outcome
  • shows how a 7-star rating and zero carbon can be achieved.

In response to submissions and Council’s invitation to comment, the Panel stated:

Council’s declaration of a climate emergency in 2016 demonstrates its support for measures which address climate change and minimise the carbon footprint within the municipality. The HVH Report was useful in demonstrating that it is possible to address the impacts of climate change and produce high performing homes that are within the Heritage Overlay. These homes may not be as environmentally efficient as a new build, but nonetheless, can achieve a high ESD outcome.

The Panel has not considered in any detail the inaccuracies in the HVH modelling that Submitter 98 alleges. The Panel in this case is not placing any reliance on the modelling undertaken in its final recommendation.

The Panel agrees with Council that heritage protection and environmental sustainability are not mutually exclusive, and how a development proposal responds to a range of policy considerations is best dealt with through the planning permit application process. 

However, the Panel appreciates the strong community position with respect to ESD considerations, and in particular, the position adopted by Submitter 98 in suggesting that a blended approach to heritage and ESD is worthy of consideration. While the Panel is not able to make a recommendation in relation to this issue, Council should consider, in consultation with the State Government, how this might one day be achieved.

Council, at the permit application stage, should consider the importance of ESD when assessing permit applications within the Heritage Overlay and balance any competing policy.

The Panel concluded that environmentally sustainable design outcomes are not relevant when assessing the heritage significance of a precinct but may be relevant during the planning permit assessment process. It further stated:

The Panel is confident that heritage and ESD can co-exist harmoniously however is cognisant that achieving an environmentally sustainable home is more involved for a heritage home than it is for a home which is not subject to the Heritage Overlay. The Heritage Overlay enables buildings and works to occur, albeit with a planning permit, and importantly, no property was nominated for internal controls. This means that considerable changes can be made to homes which are subject to the Heritage Overlay when, generally, those changes are not visible from the public realm. For example, modern, environmentally sustainable rear extensions could be permissible.

See also:

  • Guide to Planning Panels: Heritage

4. Combined Inverleigh wind farm and solar farm gets green light despite criticisms on community engagement

More than three years after its report was submitted, the Minister for Planning has released the panel report for the proposed combined Inverleigh wind farm and solar farm (Surf Coast Permits PA1800340 and 18/0356 Call-in (PCI) [2019] PPV 19).

The proposal was for 16 turbines with a maximum blade tip height of 200m and 55,000 solar panels. Together, the wind and solar farms could produce in the order of 80 to 87MW of electricity, saving an estimate of up to 220,000 tonnes of greenhouse gases per year.

The Panel has supported the proposal, but was very critical of the proponent’s approach to community engagement. It commented that the project has raised some significant concerns for the local community which have been exacerbated by the Proponent’s poor approach to community consultation and engagement, which it considered fell well short of industry standards and Government expectations. It further commented that poor engagement with surrounding communities generates risk not only for the project concerned and its social licence to operate, but for the renewable industry more broadly.

The Panel’s overall findings are reproduced below:

On balance, the Panel considers that permits should be granted for both the wind farm and the solar farm. Renewable energy projects have strong policy support, and the Panel is satisfied that using and developing the site for a wind and solar farm can, subject to appropriate conditions, harmoniously achieve agricultural production and renewable energy policy objectives. The project will not unacceptably impact on the agricultural operations in the surrounding area, or permanently remove high quality agricultural land.

The project is likely to have an overall positive effect on the environment. The project will make some contribution toward achieving the State’s renewable energy targets, and reducing greenhouse gases. The precise amount of that contribution is unclear and will depend on the overall efficiency of the project, including the efficiency of the turbines that are ultimately selected. With the possible exception of Brolga, the project is unlikely to significantly impact listed and threatened flora and fauna species, native vegetation or local water or soil quality.

The Proponent’s estimates of the indicative economic benefits of the project are likely to be overstated. That said, the Panel was not persuaded that the project will generate an economic disbenefit, or will harm the local or broader economy.

The social impacts of the project are concerning. The Panel is in no doubt that the project has caused significant levels of stress in the surrounding community, and entrenched community division. Some submitters told deeply personal stories about how the previous wind farm application had destroyed families and long-standing friendships, and impacted on mental health. Others described very traumatic events in their lives, and the solace that they gained from their properties. For these submitters, their homes are a critical part of their sense of family and security. They are genuinely concerned that the wind farm will undermine, or even destroy, the solace and security they gain from their homes and properties.

Contrary to the Proponent’s submissions, the Panel considers that these are effects of the project, not the application process. The Proponent’s inadequate consultation and engagement has contributed to these effects. Unless the Proponent (or the ultimate operator of the project) radically alters its approach to community consultation, engagement and benefit sharing, these impacts are likely to continue into the future, to the detriment of the surrounding community.

The social impacts of the project must be balanced against the other impacts and benefits of the project. When weighed as part of an objective and balanced assessment, the Panel considers that the social impacts of the project are not so severe as to justify refusing the permits.

That said, the Panel urges the Proponent in the strongest terms to rethink the approach taken to date on consultation and engagement and benefit sharing. The Proponent must engage more constructively and respectfully with the surrounding community going forward. It must consider a more suitable and comprehensive community benefit sharing program, including neighbourhood benefit payments and compensation packages for the most affected non-stakeholder landowners. The community will also need to approach its ongoing relationship with the Proponent (or the ultimate operator of the project) with an open mind.

The Panel also considers that the permit should expire if construction has not commenced within three years, and been completed within six years, to reduce the extent of the period of impact on the community.

See also:

  • Guide to Planning Panels: Wind farms
  • Guide to Planning Appeals: Solar farms

5. Green light for Warburton Mountain Bike Destination

Following a 15 day hearing, the Inquiry and Advisory Committee (IAC) has, in Warburton Mountain Bike Destination (EES) [2022] PPV, recommended approval of the Warburton Mountain Bike Trail.

The Project will consist of up to 177 kilometres of mountain bike trails (155 kilometres of which will be new trails), providing a range of mountain bike experiences to suit all levels of riding. The trail network has two main parts – a northern section and a southern section. The northern section is located mainly in the Yarra Ranges National Park. The southern section is located mainly in Yarra State Forest. Trail heads and associated infrastructure is also proposed, including two new bridges for riders (one across the Yarra River and one across Old Warburton Road).

The Environment Effects Statement (EES) includes two alternative trail alignments for the network in the National Park:

  • Trail 1, nicknamed ‘Drop-a-K’, heads west from the Mount Donna Buang summit and is Council’s preferred alignment.
  • The alternative alignment, Trails 45 to 47, heads east from the Mount Donna Buang summit.

Over 2,700 submissions were received, with the majority in support of the proposal. The IAC heard evidence and submissions from Council, the Victorian National Parks Association (VNPA), an expert in the Mount Donna Buang Wingless Stonefly, several local environment and community groups, several mountain bikers and mountain bike clubs, local businesses and business associations, other businesses associated with mountain biking, and individual submitters, many of whom live in Warburton.

As well as the EES, a planning scheme amendment was exhibited concurrently. It proposes to apply a Specific Controls Overlay (SCO) to the Project land, and introduce the Incorporated Document into the Planning Scheme to govern the use and development of the Project. The Incorporated Document allows the Project to proceed without the need for any permits under the Planning Scheme, provided works are in accordance with the conditions in the Incorporated Document.

In addressing the environmental impacts, the IAC identified:

  • Impacts that are unacceptable and require Project modifications
  • Impacts that are acceptable subject to revised or additional mitigation measures
  • Impacts that are acceptable, no additional mitigation measures are required.

Its main finding was as follows:

Overall, the IAC concludes that the rationale for the Project is essentially sound. Provided it is well built, well maintained and well operated, the IAC sees no reason why it should not attract substantial visitor numbers and generate economic and social benefits to Warburton, the Upper Yarra Valley and to the state of Victoria more broadly. However, the Project’s potential economic and social benefits must be carefully balanced against its environmental impacts.

See also:

  • Guide to Planning Panels: Environmental Effects Statements