East Beach, Port Fairy Permit Call-in Panel Report · The land forms part of the sand dune system between the beach and the Moyne River floodplain. The subject land ranges in height

MOYNE PLANNING SCHEME PERMIT APPLICATION PL04/232

RESIDENTIAL SUBDIVISION EAST BEACH, PORT FAIRY

PANEL AND ADVISORY COMMITTEE REPORT

JUNE 2009

MOYNE PLANNING SCHEME PERMIT APPLICATION PL04/232

RESIDENTIAL SUBDIVISION EAST BEACH, PORT FAIRY

PANEL AND ADVISORY COMMITTEE REPORT

Jenny Moles, Chair

Alan Chuck, Member

Rod Gowans, Member

JUNE 2009

Page 1

MOYNE PLANNING SCHEME ‐PERMIT APPLICATION PL04/232 CALL‐IN PANEL AND ADVISORY COMMITTEE REPORT – JUNE 2009

Contents SUMMARY ........................................................................................................................ 3

1. BACKGROUND....................................................................................................... 6

2. WHAT IS PROPOSED? .......................................................................................... 9 2.1 Subject site and surrounds ....................................................................................... 9 2.2 The proposal............................................................................................................. 14

3. HISTORY OF APPLICATION............................................................................. 19

4. CURRENT PLANNING CONTEXT................................................................... 25 4.1 Planning scheme requirements ............................................................................. 25 4.2 State Planning Policy Framework (SPPF) ............................................................ 29

4.2.1 Settlement...................................................................................................... 29 4.2.2 Environment.................................................................................................. 30

4.3 Policy documents .................................................................................................... 33 4.3.1 The Victorian Coastal Strategy ..................................................................... 33 4.3.2 Ministerial Direction No 13 and General Practice Note ............................... 38 4.3.3 Coastal Spaces Report................................................................................... 39 4.3.4 Moyne Coastal Action Plan 2001.................................................................. 41

4.4 Local Planning Policy Framework (LPPF)........................................................... 43 4.4.1 Municipal Strategic Statement ...................................................................... 43 4.4.2 Local planning policies ................................................................................. 47

4.5 Proposed Amendment C21.................................................................................... 52

5. CONSIDERATION OF THE APPLICATION FOR PERMIT........................ 55

6. SHORELINE RECESSION................................................................................... 56 6.1 What future erosion is likely or possible?............................................................ 56

6.1.1 Past and current erosion ................................................................................ 56 6.1.2 Forecasting erosion: application of the Bruun Rule...................................... 58 6.1.3 Other evidence concerning erosion ............................................................... 66

6.2 Can preventative measures be put in place satisfactorily to deal with this future erosion? ......................................................................................................... 69 6.2.1 Options available........................................................................................... 69 6.2.2 Protection Measures ...................................................................................... 69 6.2.3 Accommodating the hazard........................................................................... 74

6.3 Panel conclusion on future erosion hazard ......................................................... 74

7. RELATIONSHIP TO PLANNING POLICY ..................................................... 75 7.1 Applicant’s submissions......................................................................................... 76 7.2 Panel response ......................................................................................................... 77

7.2.1 Balance of policies ........................................................................................ 77 7.2.2 Policy should be applied ............................................................................... 79 7.2.3 Key policies not only directed to planning authorities.................................. 80 7.2.4 Detailed critiques of policies......................................................................... 81

7.3 Panel conclusion on policy..................................................................................... 83

8. THE EFFECTS OF LAND BASED FLOODING............................................... 84 8.1 The Flood Study ...................................................................................................... 84

8.1.1 The report ...................................................................................................... 85

Page 2


8.1.2 Climate change.............................................................................................. 86 8.2 Effect on subject land .............................................................................................. 86 8.3 Griffiths Street access.............................................................................................. 87 8.4 Panel conclusion on flooding................................................................................. 89

9. EXTENT OF EARTHWORKS.............................................................................. 90 9.1 Filling of the floodplain .......................................................................................... 90

9.1.1 Application plan: accompanying earthworks ................................................ 90 9.1.2 Revised plan: accompanying earthworks ...................................................... 91

9.2 Panel comment ........................................................................................................ 91 9.3 Panel conclusion on earthworks ........................................................................... 93

10. APPROVAL UNDER THE COASTAL MANAGEMENT ACT .................... 94

11. OTHER ISSUES...................................................................................................... 98 11.1 Need and want in planning considerations ........................................................ 98 11.2 Urban design and the urban edge....................................................................... 102 11.3 The issue of precedent .......................................................................................... 103

12. IS A REDUCED SCALE OF DEVELOPMENT APPROPRIATE?............... 104 12.1 Previous entitlements ........................................................................................... 104 12.2 Fundamental unsuitability for residential purposes........................................ 105 12.3 Conditions not drafted ......................................................................................... 105

13. ARE THE CURRENT PLANNING CONTROLS APPROPRIATE?........... 107 13.1 Are the current controls soundly based? ........................................................... 107

13.1.1 Advisory Committee response .................................................................... 108 13.2 Are the controls strategically appropriate now?............................................... 117

13.2.1 Advisory Committee response .................................................................... 118 13.3 Equity argument.................................................................................................... 121

13.3.1 Advisory Committee response .................................................................... 121 13.4 What is the future for this land?.......................................................................... 123

13.4.1 Submissions on alternative controls............................................................ 124 13.4.2 Pertinent characteristics of the land ............................................................ 125 13.4.3 The future for the land................................................................................. 125

14. PANEL AND ADVISORY COMMITTEE CONCLUSIONS AND RECOMMENDATIONS..................................................................................... 128

14.1 Panel and Advisory Committee conclusions .................................................... 128 14.2 Panel recommendation......................................................................................... 129 14.3 Advisory Committee recommendation ............................................................. 129

Appendices APPENDIX A: ADVISORY COMMITTEE TERMS OF REFERENCE ............... 130

APPENDIX B: THE PANEL/ADVISORY COMMITTEE PROCESS .................. 133

APPENDIX C: LIST OF HEARING EXHIBITS....................................................... 138

APPENDIX D: PROPOSED PLANS OF SUBDIVISION...................................... 146

APPENDIX E: FLOODING PLANS .......................................................................... 150

Page 3


Summary

This is the Report of the Panel appointed by the Minister for Planning to consider and advise on planning permit application PL04/232 (the Application) under the Moyne Planning Scheme (the Planning Scheme) which proposes a 22 lot residential subdivision on a 4.2 ha holding on the coastal sand dunes at the north‐eastern edge of Port Fairy township. In January 2008, the Application was called‐in from the Moyne Shire Council by the Minister acting under section 97B of the Planning and Environment Act 1987 following consideration of a request to do so by the Minister for Environment and Climate Change.

The Panel comprises Ms Jenny Moles (Panel Chair) and Messrs Alan Chuck and Rod Gowans (Members).

The same persons were also appointed as an Advisory Committee to the Minister to advise whether the current planning controls applying to the land are appropriate. This Report also contains the Advisory Committee advice to the Minister.

The subject land at 228 Griffiths Street, East Beach is undeveloped. The Application is for subdivision and accompanying earthworks to create suitable building sites for dwellings, installation of services and native vegetation removal. The land is the northernmost parcel of the strip of land in residential zoning extending in a north‐easterly direction along the beach from the centre of the township. Developed residential land abuts the southern boundary of the site. The land also directly abuts the beach and has attractive views both in the direction of the coast and to the inland.

The land forms part of the sand dune system between the beach and the Moyne River floodplain. The subject land ranges in height above sea level from 1.5 metres AHD to 16.5 metres AHD. The land varies in depth from the boundary with the beach between 67 and 100 metres approximately.

The principal issue in the consideration of the Application has been the extent of shoreline recession which may occur as a result of a future sea level rise of 0.8 metres by 2100 ‐ which is the predicted sea level rise that State planning policy now requires to be taken into account. While the precise extent of the resultant future recession was the subject of disagreement between the expert witnesses, it is clear that inundation and erosion would be substantial. The best estimates by the engineer for the Applicant suggest that the recession would result in a requirement for a building line set back

Page 4


from the current dune ridge by between 33 and 49 metres (assuming piled buildings.) This is some 50 per cent or more of the depth of the land in places. It would also result in a loss of developable area on nine of the proposed lots of some 50 per cent or more. It would appear also that in storm events, unless protection measures were in place, the sea could in places breach the dunes as currently configured or as might be reshaped by future coastal processes. This would mean that seawater might run down the slope at the rear of the dune crest, through the development and then have an unimpeded path to Belfast Lough. We are of the view that a retreat response to shoreline recession is not a feasible option for development on this land.

The Applicant recommended that in addition to the proposed setback, the present and future owners might take (some) financial responsibility for some protection works, but we are not satisfied that any of the measures recommended are satisfactory. Adaptation measures are also limited.

It is our conclusion that on this sand dune ‐ for which there is a clear history of substantial erosion ‐ it would be foolhardy and contrary to orderly planning to allow residential development. In our view this concern alone provides a sufficient basis to refuse the application for permit.

There are a number of other factors, however, which recommend against approval of the Application. Perhaps the most significant is the susceptibility of the only access road for the land to flooding by the Moyne River under extreme and even moderate flooding events. This flooding will be exacerbated by sea level rise. Further, the earthworks required to create suitable house sites are significant and the resultant filling of the floodplain of the Moyne River is undesirable. Moreover, the required prior approval for essential aspects of the development under the Coastal Management Act 1995 is not in place.

In our view the proposal is also clearly contrary to planning policy and there is no good reason to depart from that policy. While there were positive arguments relating to other issues advanced for the Applicant, we have not been persuaded as to their correctness or that they are not outweighed by the significant arguments against approval of this proposal.

So far as the appropriateness of the current controls is concerned, it is our view that the current Residential 1 Zone appears to have been put in place irregularly and in any case is not now strategically appropriate. The land in our view should be restored to rural zoning with a view to its possibly being used for a public purpose in the longer term. Even with the current application of the Environmental Significance Overlay, the current

Page 5


residential zoning gives the misleading impression that the land is capable of being used for urban residential purposes. In our view this is simply not appropriate given the physical characteristics of the site and the current awareness of potential erosion hazard associated with future sea level rise. This is not a site where retreat or shoreline setback is a practicable option, and, as we have indicated, while the Applicant sought to persuade us that mitigation measures are available, none are satisfactory as currently proposed.

It was argued on behalf of the Applicant that, even if we were of the view that the current planning controls, and in particular the zoning, are inappropriate, we should not recommend ‘back‐zoning’ to a rural zone because this would be unfair on the Applicant who had purchased the land under a residential zoning. In our view this argument should be afforded only little weight given the land was purchased from the previous owners (who had lodged the Application) when there were already significant objections by various Government agencies to the Application, as well as from members of the local community. We cannot accept that the difficulties faced in achieving approval for the Application would have not been apparent to Marcson at the time it purchased the land.

We have recommended that the most desirable outcome would be for this land to be transferred to public ownership. In the absence of an agency willing to purchase the land, however, and its remaining in private hands, it should be ‘back zoned’ to Rural Conservation Zone with the ESO1 and DDO 21 retained. It should also be made subject to special provisions in Clause 52.03 limiting agricultural and other activities to the lower, flatter land in the lee of the dunes as has traditionally been the case, and facilitating other acceptable uses.

Page 6


1. Background

This is the Report of the Panel appointed by the Minister for Planning to consider and advise on planning permit application PL04/232 (the Application) under the Moyne Planning Scheme (the Planning Scheme) which proposes a 22 lot residential subdivision on a 4.2 ha holding on the coastal sand dunes at the north‐eastern edge of Port Fairy township. The address of the land is 228 Griffiths Street.

The Panel comprises Ms Jenny Moles (Panel Chair) and Messrs Alan Chuck and Rod Gowans (Members).

The same persons were also appointed as an Advisory Committee to the Minister to advise whether the current planning controls applying to the land are appropriate. This Report also contains the Advisory Committee advice to the Minister.

The Application was first lodged with Moyne Shire Council (the Council) as responsible authority for the Planning Scheme in 2004. It proposed a 20 lot subdivision. The land was sold in 2005 and the Application was amended at that time to a 35 lot subdivision. The Application was then amended again in July 2007 when the number of proposed lots was reduced to 28.

Having considered a request from the Minister for Environment and Climate Change to call‐in the Application under section 97B of the Planning and Environment Act 1987 (the Act), the Minister for Planning called‐in the application from the Council on 8 January 2008.

In a letter dated 8 February 2008 advising the Council of his decision to call‐in the Application, the Minister said:

The Minister went on to advise that he had also decided to appoint the Panel as an Advisory Committee ‘to consider the existing and future planning controls for the site’.

Page 7


The single term of reference given to the Advisory Committee was as follows:

Shortly after the Application was called‐in, the Application was further amended in February 2008 to a proposal for a 22 lot subdivision.

Report Structure

It is an unusual task that has been given to this Panel/Advisory Committee – to consider both a permit application and the appropriateness of the planning controls which necessitate that application. In these circumstances, it would seem possible that it was not intended that that the consideration of the Application was to be bound by the planning controls as they stand today.

At the hearing conducted by the Panel/Advisory Committee, the parties were invited to make submissions on the manner in which we should approach the two tasks, including the order in which we should consider them. There was some support for the strategic issues around the planning controls being considered and concluded first. We decided against this approach, however, on the basis that it might have led to simply dismissing the Application as no longer appropriate without consideration of the detailed submissions presented on the merits of the Application. Accordingly we have decided that we should first consider the permit Application. Strategic planning considerations similar to those relevant to consideration of the planning controls have nevertheless had an important role to play in consideration of the Application.

In Sections 6‐12 of this Report we consider the issues around the Application and recommend an outcome. We then deal with the matter of the appropriateness of the current planning controls applying to the land and recommend changes to them in Section 13.

Appendix A of the Report contains a full copy of the document containing the Advisory Committee’s term of reference.

Appendix B includes details about the Panel/Advisory Committee hearing and inspections and a list of parties to the combined proceeding.

Appendix C contains a full list of the exhibits from the hearing.

Page 8


Appendix D includes the 22 lot site layout plan proposed in the amended Application being Plan TP01 Revision G. It also includes a further revision of that plan proposed by the Applicant to respond to a 0.8 metre sea level rise (TP01 Revision H).

Throughout this Report we refer to the Panel and Advisory Committee functions separately.

Page 9


2. What is proposed?

2.1 Subject site and surrounds

The land is an undeveloped parcel comprising three lots and part of one Crown allotment immediately to the north‐east of the existing residential development which extends along East Beach for some two kilometres from the Griffiths Street bridge over the Moyne River near the Port Fairy town centre. The southernmost part of the subject site is located approximately 170 metres north‐east of the intersection of Connolly Street with Griffiths Street. The land directly abuts the beach and has attractive views both in the direction of the coast and to the inland.

The land comprises part of CA 32 and Lots 1 and 2 on TP 22342K and Lot 1 on TP 863428G. The land is roughly rectangular in shape. It has a frontage to the eastern side of Griffiths Street of some 490 metres. The land varies in depth: the northern boundary is some 67 metres and the southern boundary is 100 metres approximately.

Figure 1 below which is taken from Rob Milner’s expert planning evidence called by the Department of Sustainability and Environment (DSE) at the Panel hearing shows the general location of the subject land in relation to Port Fairy and East Beach.

The subject site is part of a large sand dune system bounded to the north‐west by Griffiths Street and to the south‐east by the beach. The sand dunes run generally in a north‐east to south‐west direction parallel to the shore line. For ease of description, we refer to the coast in this location as running north‐south. The dunes separate the Moyne River valley from the sea with the river mouth located further to the south adjacent to Griffiths Island. The housing to the south of the subject site is therefore constructed on part of the same dune system. This dune system terminates at Reef Point perhaps three kilometres to the north.

The subject land ranges in height above sea level from 1.5 metres AHD to 16.5 metres AHD. The lowest point is inland from the crest of the dunes which are aligned roughly parallel to the shoreline, and within the low lying land adjacent to Griffiths Street which forms the eastern extremity of the Moyne River flood plain. The highest point on the land is located towards its southern end where the tallest dune drops steeply away to the beach. That dune also drops sharply to the rear leaving a narrow ridge parallel to the beach.

Page 10


Figure 1: Location of subject site (Source: Coomes Planning Witness Report, Exhibit DSE 21, following p3)

On the eastern (seaward) side of the main dune towards the southern end of the subject site, at the foot of the dune, there is a suggestion of a much smaller sand dune or bench. A more pronounced ‘incipient dune’ of this kind runs along the face of the dunes which are located to the north of the subject site.

The dune system landward of the main ridge especially at the southern end of the site does not have a discernable pattern and is a jumble of humps and hollows of varying depths and widths. The hollows in this area are perhaps 1‐3 metres deep and are sometimes cup‐shaped with a defined unbroken rim of even height.

The evidence presented to us was finally inconclusive as to whether the cup‐shaped hollows were natural depressions created by the wind (blow outs) or were the results of the land being used for sand extraction (borrow pits). While some of the engineers associated with this development assumed that the hollows are man‐made, it does seem to us to be more likely that they are at least in part natural formations, as they also occur further to the north

Subject land

Page 11


behind the main dune ridge adjacent to the golf course (as we reported to the parties following our independent inspection). No records of sand extraction for either location were provided to us. If these depressions are natural formations, as we suspect, this would indicate the susceptibility of the land to wind erosion and in particular to erosion by wind eddies on the lee side of the dune ridge.

At its southern extremity, just to the south of the tallest dune, the dune system has been subject to wave erosion – caused by ‘end effects’ of the rock wall first built in the 1960s at the base of the dune further to the south. This was constructed to protect the housing already occupying that portion of the dune system from wave erosion. There was no dispute between the parties as to end effects being the cause of the erosion of the subject sand dune in this location.

The subject land supports a partial vegetation cover. Most of the vegetation is Marram grass, with some stands of low coastal wattle and various species of environmental weeds also present.

Originally the subject land would have supported wind‐pruned coastal scrub with the possibility of coastal woodlands on the leeward side of the dunes. In the mid or late 1800’s this dune system was severely modified and it now supports dune grassland dominated by Marram grass. Marten Syme, an objector, advised that this grass was first planted here in 1883. Flora surveys of the land undertaken by Ecology Australia, consultants for the then applicants (J and D Finnigan) in 2004 recorded extensive weed species, particularly shrubs and grasses. Weed species made up 53 per cent of the plant species present and 84 per cent of the cover. No plant species recorded on the land are of State or National significance. Due to the level of degradation that has occurred, the vegetation was considered by the consultant to have only local conservation significance.

So far as fauna is concerned, the 2004 consultant report prepared by Ecology Australia for the Finnigans indicated that the fauna habitat value of the land is considered to be low due to the highly degraded native vegetation on the land, the extent of invasion by introduced plant species and the resulting low level of structural diversity. A total of 28 fauna species were recorded on the land in the 2004 survey, 21 of which were native. All the native fauna recorded on the land were considered to be at least locally significant with one species being regionally significant. One bird species of national significance, the Hooded Plover, has been recorded for adjoining habitat on the seaward side of the dune. There are no records for Hooded Plovers breeding on the subject land itself but this species has been recorded on an unspecified location on the dunes of the Belfast Coastal Reserve. The Panel

Page 12


reported to the parties that we observed Hooded Plovers on the beach only 100 metres north of subject site on our unaccompanied inspection on Friday 18 July 2008.

While a number of written objections to the Application in its various iterations including from private individuals and from DSE, the Western Coastal Board and the Glenelg Hopkins Catchment Management Authority raising concerns about effects on flora and fauna, including Hooded Plovers, no other party at the Panel hearing suggested that this land is of higher biodiversity significance than assessed by Ecology Australia. The Panel agrees that the land does not have high biodiversity values and that such values are not central to the issues in this case. We note, however, that DSE has requested 0.8 ha of offset planting for the proposed removal of native vegetation.

So far as cultural significance is concerned, the May 2004 report by Heritage Insight (D Rhodes), archaeological consultant to the Finnigans, indicates that prior to European settlement there were three Aboriginal clans based in the Port Fairy area and a number of locations near the subject land were of traditional importance to these clans. The report indicates that previous archaeological surveys had identified one Aboriginal site on the land located close to the eastern boundary at about 40 metres south of Griffiths Street. That site, which was on the sheltered side of the dunes, was a shell midden. The consultant in 2004 was unable to relocate the shell midden site, however, and it is suggested in the report that the site, which was only six square metres in area, may have been removed by wind erosion. However, two stone artefacts were located below the midden site and it was thought that these artefacts were derived from the shell midden site.

While no other indigenous archaeological sites were located in the 2004 survey, the land was considered by the consultant to have potential to contain other archaeological sites, particularly shell middens and also human burial remains. The known Aboriginal site on the land containing the stone artefacts was assessed as being of low heritage significance.

A second opinion on the likely archaeological values of the subject land was obtained from Leubbers and Associates and reported in May 2005. The findings of this second report largely accord with the report by Heritage Insight. The expected incidence of Aboriginal cultural material both in terms of density at any one location or generally throughout the subject land is exceedingly low. The exception is the registered site and the site reported by Heritage Insight. Leubbers and Associates were of the view that the two sites were sufficiently close together to be considered to be one site. The

Page 13


larger amalgamated site was also considered to contain a wider range of cultural materials than originally reported.

We note here as an aside that it was common ground between the Council, the Applicant and the Department of Planning and Community Development (all of whom appeared at the Panel hearing) that the Application is not subject to a mandatory requirement under the Aboriginal Heritage Act 2006 for the preparation of a cultural heritage management plan. Nevertheless it is to be noted that a letter dated 24 March 2009 was received from the Framlingham Aboriginal Trust by the Minister and forwarded to the Panel (Exhibit 37). The Trust indicated concern that the full extent of the cultural heritage site on the land had not yet been defined and objected to the Application until that work was completed. The Council suggested at the hearing that this matter might be dealt with by permit conditions. This was not resisted by the Applicant.

A 2004 review of the land use history of the land by Heritage Insight which accompanied the archaeological review did not indicate any significant historical use of the land. No non‐Aboriginal archaeological sites were located during the survey conducted in 2004. Two written objections to the Application mentioned that the land was formerly the garden of the old police house and asserted it was of heritage significance.

Inspection of the land reveals that it does contain an old dilapidated farm fence internal to the site. It separates the flatter land adjacent to Griffiths Street from the more steeply sloping dunes. This fence was said by the objectors to confine the Digby cattle to the lower, flatter portion of the land. So far as the police house garden is concerned, there is no garden fabric left to manage on the land.

Immediately to the north of the subject land is the Council‐managed Port Fairy Coastal Reserve developed in part as a gravel car park with wooden steps down to the beach. The base of the dunes behind those steps is severely eroded and the bottom of the steps has clearly been twice extended by additional steps (at least nine steps) in recent years. We were told by Russell Guest, who appeared for the Shire of Moyne at the Panel hearing, that the last major works were done in 2002. He also said that subsequent repairs were undertaken in November or December 2008 and on 9 March 2009. At the time of the Panel inspection in July 2008, the concrete footings for the new steps were also exposed apparently as a result of further beach erosion. The footings were partially re‐covered by sand when the Panel Chair inspected the area on 25 October 2008.

Page 14


Further to the north in the dunes is the site of the Council’s former tip. The tip operated for from the early 1980s and was closed in 1998. In recent years rubbish has been exposed by erosion on the seaward side of the dunes. A number of reports have been prepared by Council consultants, ENSR Australia Pty Ltd, to identify the most suitable means to prevent ongoing wave erosion exposing yet more rubbish (see Exhibit A7).

Still further to the north is the Port Fairy Golf Course – a links course constructed at least in part on the dune system.

Across Griffiths Street to the west is Belfast Lough which is part of the Moyne River system, and farm land. While the Lough waters and a small area of adjoining land are classified as public land, these, together with the surrounding farm land, are included in the Farming Zone of the Planning Scheme.

The beach area to the east of the subject land is, so far as property title is concerned, included in a road reserve: Beach Street. This road reserve extends southwards towards the town centre along the front of the existing housing facing the beach and physically exists as a road some distance south of the subject site. In that more southerly location it is included in a Road Zone 2 under the Planning Scheme. The road reserve terminates adjacent to the northern boundary of the subject site. Adjacent to the subject site on the seaward side of the road reserve and extending northward from it, there is a narrow strip of Coastal Protection Reserve – apparently extending out to low water mark (see Exhibit M2). Beach Street and the abutting coastal reserve are shown on Planning Scheme Map 34 as included in the Public Park and Recreation Zone (PPRZ). Curiously the reserve changes to Public Conservation and Resource Zone (PCRZ) at the boundary with Map 36 of the Planning Scheme, which occurs in the vicinity of Connolly Street.

2.2 The proposal

The proposal is to subdivide the land into a single line of 22 lots running along Griffiths Street. The lots would range in size from 799 square metres to 2210 square metres. Five of the lots would be less than 1000 square metres in area, 10 would be between 1000 and 1500 square metres, and seven would have an area greater than 1500 square metres. The nine southernmost lots and the lot proposed at the northern boundary would all have depths of 60 metres or more. The remaining lots would have depths of less than 60 metres – the minimum depth being just under 44 metres. The lots would vary in width as presented to Griffiths Street from less than 17 metres to around 33 metres.

Page 15


The lots would have vehicular and pedestrian access from Griffiths Street via three short service roads to be created parallel to Griffiths Street. On the 22 lot proposed plan of subdivision, the service roads are shown as ‘road’, with the land between these service roads, and the land between the roads and Griffiths Street (which is proposed to be used as part of the stormwater drainage system) designated as ‘common property’. Common property is also shown running between proposed Lots 14 and 15 ‐ extending to the eastern boundary of the site. Stuart Morris QC, who appeared for Marcson at the Panel hearing, advised that it would be available to the public as a walkway to the beach and it is intended that its ownership would be transferred to the Council. Mr Guest indicated, however, that the Council would be reluctant to accept responsibility for the walkway. A further narrow strip of common property is shown on the seaward side of Lots 2 to 13 towards the northern end of the site. This is proposed to be used to accommodate a boardwalk providing access from Lots 1 to 14 to steps to be constructed down the face of the dunes to the beach.

On the 22 lot proposed plan of subdivision and the accompanying site layout plan (Plan TP01 Revision G being Exhibit A1 and included as the first plan in Appendix D of this Report), a building envelope is shown for each lot. The building envelopes have varying setbacks and shapes which apparently respond to the site contours. A notation on the proposed plan of subdivision indicates that a mutually burdening and benefiting restriction would be applied to the title to each lot. The restriction would be expressed as follows:

The registered proprietor or proprietors for the time being of the lots on this plan shall not, without the prior approval of the Moyne Shire Council, construct a dwelling outside the building envelopes shown on …. this plan.

Contrary to what it is indicated on the proposed plan of subdivision, however, we were told by the Applicant’s representatives at the hearing that the development on the land would be confined to the building envelopes not by a restriction as shown but by an agreement made under section 173 of the Planning and Environment Act 1987 (the Act).

On the site layout plan (Plan TP01 Revision G), an indicative dwelling footprint is also shown on each lot.

Certain works are also proposed to be undertaken on the land before the lots would be sold on. They are listed in Exhibit A14. They include construction of basic infrastructure services being roads, pathways and boardwalks, sewerage, stormwater systems, reticulated power, telecommunications and gas. The land would also be partially landscaped. The lots are also proposed to be filled or levelled to create building platforms for future dwellings. The

Page 16


creation of the platforms is not only necessary because of the irregular surface of the land at present but building sites above the expected level of 1:100 year floods from the Moyne River would need to be created. Cross‐sections were provided showing the extent of earthworks proposed (Exhibit 41). The building envelopes are also all sited landward of a development setback line defined by the Applicant’s coastal engineering advisers (Coastal Engineering Solutions) which is designed to ensure that buildings would be sited clear of the area of the dune subject to inundation and erosion hazard as a result of a climate‐change‐induced sea level rise of 0.48 metres and storm surges. Earthworks to reinforce the dune at the southern end of the land are also proposed.

We were also told that the Applicant would be prepared to accept as a condition of approval, a requirement that future housing on each lot must not exceed an overall height of 7 metres above the finished ground level of the lot and may extend not more than 3 metres above the highest point of the dune ridge seaward of the house pad. This is proposed to also be the subject of an agreement made under section 173 of the Act.

During the course of the hearing, a revised 22 lot site layout plan (Plan TP01 Revision H being Exhibit 29B also included in Appendix D of this Report) was put forward on behalf of the Applicant which responded to the new State policy position of December 2008 (as discussed in Section 4 of this Report) that responsible authorities are to plan for a sea level rise by 2100 of not less than 0.8m. The Applicant did not seek to formally amend the Application but proposed that the revised site layout plans would be substituted by condition on any permit granted. On that revised plan, the building envelopes are arranged closer and parallel to the service road frontage so as to be clear of the revised development set back line which has shifted further landward into the proposed lots. The building envelopes are also shown as considerably larger. When we enquired, we were given no reason why the building envelopes had been made bigger. No building footprints are shown on the plan proposed to be substituted by condition (Plan TP01 Revision H). Nor was any detail of the amount of sand required to be shifted to provide for house sites provided for Plan TP01 Revision H.

It is to be noted that the development setback line indicated on Plan TP01 Revision H (representing, in the Applicant’s expert’s view, the boundary between hazard free land and land potentially subject to inundation and erosion under a 0.8 metre sea level rise – with a small buffer allowance), in most places leaves only approximately half the depth of the subject land suitable for building.

Page 17


The Application does not seek permission for the dwellings which would be developed on the lots (they would require later separate planning permission). Nevertheless the Applicant also proposes a set of design guidelines would apply to housing development on the land. These again are proposed to be imposed by a section 173 agreement as a condition of any permit granted for subdivision. We were provided with a draft set of these guidelines prepared when two rows of 36 lots were proposed. While it was indicated early in the hearing that a revised set of guidelines suitable for the 22 lot layout would be later be tendered, no updated set was ever provided. Instead we were requested to require by permit condition the updating of the guidelines earlier tendered. The Applicant also indicated a preparedness to fund an architectural advisory service for the Council to assist it in dealing with dwelling applications on the subject site.

Also shown on both the amended Application site layout plan (Plan TP01 Revision G) and the revised site layout plan (Plan TP01 Revision H) are three sets of stairs connecting the walkways to the beach. These would extend from the subject land onto the beach itself. The extent to which they would be constructed on the public beach (and in the Public Park and Recreation Zone) rather than the site itself is somewhat unclear due to the historical erosion of the seaward face of the dunes and the loss of Beach Street which was pegged out between the southern boundary of the subject land and the beach in the 1850s. It seems that today some if not all of the road reserve and abutting coastal reserve is now part of the sea bed due to past erosion.

At the 2008 component of the Panel hearing, we were advised that the Applicant proposed that the current landowner and future owners would accept a legal commitment to being financially responsible for future mitigation works to prevent further erosion of the lots by the sea. It was said also that the owners would only be required and allowed to construct the works if and when the lots eroded to a nominated extent. This was envisaged as being implemented through a section 173 agreement.

While the future works envisaged at that time were ‘hard engineering’ structures such as rock walls or groynes, the Applicant also introduced a ‘soft engineering’ option at the April 2009 component of the hearing – being an artificial off shore reef constructed of large stable sand bags.

At the April 2009 component of the hearing, also, a variant on the funding for the future works was introduced. The Applicant now proposes that a sinking fund would be established to be jointly managed by the public land manager for East Beach and the owners’ corporation for the common land in the subdivision representing the owners to be used for future works to protect the subject site from erosion to which the Applicant would contribute

Page 18


$1 million. The Applicant provided us with an actuarial assessment that in 30 years’ time this fund could be worth $2.8 million and in 80 years, $15.7 million (Exhibit 76). As an alternative to this, the Applicant proposed that if the public land manager for East Beach were to now commit to the construction of an off‐shore reef designed to protect the subject land in the event of a sea level rise of 0.8 metres in the period to 2100, the Applicant would contribute funding of up to $2 million towards the cost of its design, construction and maintenance. These options were proposed by the Applicant to be put in place via permit conditions.

Page 19


3. History of Application

The current 22 lot version of the Application to subdivide the land at 228 Griffiths Street, Port Fairy (TP01 Revision G – Exhibit A1 included in Appendix D to this Report), was formally effected on 4 February 2008 when the Minister for Planning approved an amendment of the planning Application for subdivision that had first been lodged in 2004 and which had had several iterations in the 2004‐2008 period.

Preparations for the lodging of this Application commenced at least as early as the beginning of 2003. Correspondence was sent to the Council and the Department of Sustainability and Environment (DSE) by the land surveyor, Paul Crowe, engaged to prepare the plans for the then applicant, John Finnigan (Exhibit 77) in February of that year. In his letter of 19 February 2003 to DSE, Mr Crowe indicated the possibility of a 40 lot residential subdivision, and sought advice on matters relating to ‘endangered flora and fauna, dune significance, dune management, sea accretion, aboriginal interest and any other relevant matters’.

The initial planning Application which was subsequently lodged in June 2004 proposed a 20 lot subdivision. The then owners of the land were John and Debra Finnigan, who had inherited the land from longstanding earlier owners, Thomas and William Digby, in December 2002. The first of the Digby brothers (Thomas) died in August 2001 and the second (William) in September 2002. These brothers (who it seems had never married) had been farmers. They lived together into their old age nearby at the edge of Port Fairy. The pattern of lot numbering in the immediate area suggests that the land on the western side of Griffiths Street opposite the subject site had once formed part of the same title – probably during the Digby’s ownership. We were advised by local residents that the Digbys had used the lower part of the land closest to Griffiths Street for grazing. The Application was lodged by the Finnigans’ surveyor – Mr Crowe. It was accompanied by an archaeological report and a flora and fauna assessment report.

Bruce Leishman, solicitor, recalls (in his affidavit – Exhibit A28) that following the death of the second Digby brother (William), at the time of the reading of his will (made in June 2001) to the Finnigans, the Finnigans were surprised to learn that they were the sole beneficiaries of the Digby estate. They were of the belief that the estate would have been left to a brother of the deceased or the local church.

Page 20


The Panel was told by Mr Guest that the 20 lot Application by the Finnigans brought to the attention of the Council that, at the time of introduction of the ‘new format’ Planning Scheme (based on the Victoria Planning Provisions) in January 2000, the subject land, which had previously been included in the Agriculture Zone of the Moyne ‘old format’ (pre‐Victoria Planning Provisions) Planning Scheme, had been included in the Residential 1 Zone – which zoning remains in place today.

When the Finnigans’ Application was lodged, the Council nevertheless requested further information and provided a preliminary assessment of the proposal by way of a letter to the Applicant dated 5 July 2004. Council sought a detailed development plan showing building envelopes, car parking provision, landscaping, details of any filling or alterations to the dune system, details of common property management; together with amended plans showing a minimum street setback and a geo‐technical report. The letter also raised the issue of the residential zoning of the land, advising the Finnigans that the zoning may have been applied without any strategic justification and that it ‘may present an issue in terms of determining the application’.

It seems that the Council meanwhile proceeded to investigate the anomalous residential zoning. We were told that their investigations at the time indicated that the previous agricultural zoning was not identified for conversion to residential zoning in any documents informing the ‘new format’ planning scheme review. It was also noted that the zoning appeared inconsistent with the Strategic Framework Plan which was and is part of the LPPF (Clause 22.01) which indicates that development extending north along Griffiths Street was to finish at Connolly Street (close to the extent of current development) (see Figure 3 in Section 13 of this Report). However, the investigations did reveal that the new format planning scheme was formally exhibited with the altered zoning map and that no submissions were received in relation to the matter. The panel report of November 1998 on the new format scheme also did not make any comment on the zoning of the subject land.

After a failed motion before the Council meeting of 27 July 2004 to have the subject land back‐zoned to Rural Zone on the basis that there was no strategic basis for its being zoned R1Z, and following consideration of the status of the zoning through historical data and legal advice, Council’s Planning Committee on 10 August 2004 resolved to assess the Application on its merits and to consider the appropriateness of the zoning separately via the Port Fairy Planning Implementation Strategy project.

Page 21


For reasons unknown to the Panel, the Finnigans had meanwhile agreed to sell the land to Marcson. The contract was entered into on 19 July 2005 and effected on 17 October 2005.

According to Mr Leishman, the Digbys’ solicitor, up until the time the Finnigans sold the land to Marcson they were of the belief that the land was zoned for residential use as there was originally a house on the land. He said that Debra Finnigan remembers the Digby brothers complaining in the past that the Council valued the land too highly and that they sought a lesser value of the land to reduce the rates payable as it was only used for stock grazing.

In anticipation of completion of the sale of the land to Marcson, The Partners Advisory Pty Ltd, acting for Marcson, then lodged an amended Application for 35 lots on 11 October 2005. Version 1 of that plan is dated 3 October 2005. The name of the Applicant for permit was also changed to Marcson Pty Ltd. The 35 lot plan indicated that the lots were to be serviced by a road running parallel to the coast and Griffiths Street, with 20 lots facing the beach and 13 facing the street. The Application was accompanied by the following reports prepared by a ‘project team’: Planning Submission by Hansen Partnership Pty Ltd (September 2005); Site Planning and Landscape Design Concept by Land Design Partnership Pty Ltd (September 2005);

Geomorphology and Coastal Process Report by Environmental Geosurveys Pty Ltd (Neville Rosengren of July 2005);

Archaeological Assessment by Leubbers and Associates (May 2005); Traffic and Parking Assessment by Earth Tech Engineering Pty Ltd (September 2005); and

Geotechnical and Other Features Report by How Woodhouse Graesser Pty Ltd (April 2005) with accompanying cross sections dated March 2005.

It appears that some of these reports were prepared during the time the Finnigans owned the land but were later submitted by Marcson.

Some of the project team later gave evidence before the Panel. Team members’ reports on traffic, archaeology and biodiversity were tendered to the Panel but these experts were not called as witnesses as it was agreed that those matters were not central to the determination of the Application.

The Application was advertised from 11 November to 12 December 2005 and was referred or forwarded for comment to the Council’s engineers, environment officer and environmental health officer together with the following agencies and organisations:

Page 22


Country Fire Authority; Department of Sustainability and Environment; Environment Protection Authority; Framlingham Aboriginal Trust; Glenelg Hopkins Catchment Management Authority; Powercor; Telstra; Wannon Water; and Western Coastal Board.

The proposal attracted 11 objections from local residents and the South Beach Wetlands and Landcare Group. The objectors raised a range of issues with the key objections being: the impact of development on the sand dune system and coastal vegetation;

recent heavy erosion of cliff face in the area; low prospect of screening vegetation being established; concerns about how the land was rezoned to residential; and Inappropriate extension of the town boundary/dwellings.

The Council and agency referrals raised fears that the land is unsuitable for development due to issues of sea level rise, the sand dune erosion and storm surge flood risks. They also raised issues of sustainability, threatened fauna, native vegetation significance, aboriginal heritage and the appropriateness of the zoning. The Council and DSE noted the non‐compliance of the proposal with the Victorian Coastal Strategy and the Moyne Coastal Action Plan.

The Application was then amended for a second time on 20 June 2006 under Section 57A of the Act, proposing the same number of lots (35) but showing a correction to the southern boundary of the land – ‘Version 2’ of PS 543658M dated 13 June 2006, (effectively the third version of the subdivision plan).

Meanwhile, Parsons Brinckerhoff planning consultants were engaged by the Council to develop a planning and environmental framework to guide the future planning and development of Port Fairy. Their report: Port Fairy Planning Implementation Study Urban Design Framework (April 2006) comprised 2 volumes – a Context, Issues and Directions Report and an Overview Report.

One draft of the Overview Report, and the Context, Issues and Directions Report, was attached to Mr Guest’s submission to the Panel hearing (Exhibit

Page 23


4) and the final version of the Overview Report was later tendered as Exhibit 91.

In accordance with the Council request, the consultants considered the appropriateness of the land use zoning of the subject land. We note that the discussion around the issues affecting the subject site differ as between various drafts and the final Overview Report by the consultants. Notably the discussion in the draft report at Exhibit 4 about the adverse attitude by DSE and the Western Coastal Board to residential development of the land is missing as are the discussions of the uncertainty about the long term stability of the dunes and the difficulties of back zoning.

The final version of the Overview Report (Exhibit 91) at page 8 nevertheless records that a number of public submissions to the draft strategy expressed significant concerns about the rezoning of the land to Residential 1 Zone. The consultants conclude on the basis of information presented during the course of the study that the site had been inappropriately zoned to R1Z at the time of the gazettal of the new format Moyne Planning Scheme. They say at page 8:

It is the consultants’ view that the land has been inappropriately zoned to R1Z, given the significant visual and environmental features of Port Fairy’s coastal dune system. Furthermore the existing land supply allocation for R1Z throughout Port Fairy is sufficient for the forthcoming 25 year planning horizon. Land allocated for future residential development has been selected using a range of criteria, including cost of servicing capacity, environmental features, relationship with the existing urban context and traffic requirements. The subject land does not effectively meet the future development objectives detailed throughout the strategy, and may undermine the future urban form of the township by encouraging further coastal development. The initial development proposal submitted for this site failed to meet acceptable environmental design standards.

Whilst a comprehensive submission has now been received from the proponent which demonstrates a range of environmental performance requirements that would be applied to any future development, any development on the site would potentially have some form of undesirable environmental impact.

The site is not considered appropriate [for residential development]…

The final version of the Overview Report recommends back zoning to Rural Zone but indicates that if the Council did not support the inclusion of the land in a rural zone:

Page 24


…Council should set a very high standard in the required site responsive residential design, and that unless the applicant can demonstrate how the site can be developed to meet the site’s specific demands then, an application should be refused.

Council received but (we were told by the Applicant’s representatives) did not adopt the final version of the Port Fairy Planning Implementation Study (April 2006) on 13 February 2007.

A fourth version of the proposed subdivision was submitted on 31 August 2007 proposing 28 lots – ‘Version 3’ of PS 543658M. This further revised application was advertised from 6 September 2007 to 4 October 2007.

The Minister for Environment and Climate Change wrote to the Minister for Planning on 20 November 2007, raising concerns about the proposal in relation to issues ‘of climate change, coastal protection and floodplain development’ and requested that the application be called in under section 97B of the Act.

The Minister for Environment and Climate Change also requested an Advisory Committee be appointed under section 151 of the Act ‘to consider the appropriateness of the current zoning and whether the land should be rezoned in response to the vulnerability of the site to erosion.

By the time of the Panel hearing, Lots 23‐28 were deleted from the application and ‘Version 1’ of PS 604237B, dated 11 February 2008, proposing 22 lots was submitted (See 22 lot Plan TP01 Revision G in Appendix D).

As the Application had been called‐in by the Minister before the Council had made a decision, the Panel requested that the Council advise of its position in relation to the proposal. The Council’s position was determined at the ordinary Council meeting on 27 June 2008. The Council resolved to ’inform the Minister for Planning that the Council is supportive of the Minister issuing Planning Permit PL04/232 (Residential subdivision at 228 Griffiths Street Port Fairy) conditional upon the Minister being satisfied that the proposed development responds favourably to assessment against current relevant policy and the risks associated with the predicted climate change impacts on the site’. The Council further resolved to inform the Minister that in the event that the Minister decided to issue the permit it should be subject to specified conditions.

Page 25


4. Current planning context

As noted, the subject Application was first lodged as long ago as 2004. The relevant provisions of the Moyne Planning Scheme are no longer identical to those in place at the time of lodgement. The Application is, however, required to be assessed against the current planning controls (as in place at the time of the decision on the Application). For the most part the changes have been in relation to detail and we have not felt it necessary describe the scheme provisions earlier in place nor the various changes which have been made, except as relate to coastal policy. In the case of this policy there has been a substantial shift in the manner in which the role of climate change‐induced sea level rise is to be taken into account in decisions on applications near the coast from 2004 to the present day.

4.1 Planning scheme requirements

The subject site is included in the Residential 1 Zone (R1Z), the Environmental Significance Overlay (Schedule 1) (ESO1), and the Design and Development Overlay (Schedule 21) (DDO21) of the Moyne Planning Scheme.

The purposes of the Residential 1 Zone are set out at Clause 32.01. They include:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

The purposes of the ESO (‘head clause’) are set out at Clause 42.01 as follows:


To identify areas where the development of land may be affected by environmental constraints.

To ensure that development is compatible with identified environmental values.

Page 26


The statement of environmental significance and the environmental objective for the ESO1 applying to the subject site are set out in Clauses 1 and 2 of the schedule respectively.

The statement of significance is:

The Shire’s coast is of outstanding environmental significance and is of value as a conservation, scientific and tourism resource. It supports a range of vital commercial, recreational and tourist activities amongst a diverse range of marine and land‐based ecosystems of which Childers Cove and the Bay of Islands are particularly noteworthy.

The environmental objective is:

To conserve and enhance the environmental qualities of the coast and in particular to ensure that: the water quality of streams and inlets is maintained and enhanced; sand dunes in the coastal area remain in a stable condition; and

valuable ecological systems are protected. (Our emphasis)

The head clause of the DDO (Clause 43.02) includes the following purposes for the DDO:


To identify areas which are affected by specific requirements relating to the design and built form of new development.

The DDO schedule includes the following relevant design objectives for the area affected:

To encourage development which does not have a detrimental effect on the high scenic and environmental values of the area.

To protect existing native coastal vegetation and to encourage additional appropriate planting. (Our emphasis)

Under the R1Z, ESO1 and DDO21, planning permission is required to subdivide land. Under the ESO, permission is also required for the subdivision works and vegetation removal (subject to works exemptions for installation of direct services to dwellings and exemptions applying to some of the vegetation removal). Under the DDO, permission is also required for the subdivision works with similar servicing exemptions. Mr Morris noted also that roadworks are exempt from permission under Clause 62.02‐2 of the Planning Scheme, as are those necessary to prevent soil erosion or to ensure

Page 27


soil reclamation. He suggested that these exemptions would apply to the walkways (‘if these are ‘roadworks’) and to the earthworks to reinforce the dune respectively. No planning permission for the works associated with the subdivision is required under the zone.

Relevantly, so far as future use of the land is concerned, under the zone provisions, no planning permission is required for the use of the land for dwellings nor for the development of the land for this purpose (unless ‐ as is not proposed here ‐ there is more than one dwelling on a lot or the lot is less than 300 sq m in area). However planning permission would be required for the development of dwellings under both the ESO and the DDO. Under the ESO, it is only where lots are in excess of 40 hectares that a dwelling may be developed without planning permission.

Permission for native vegetation removal is also required under the State‐standard Clause 52.17.

Design requirements are set for subdivisions in DDO21. They can be varied with permission. The design requirements are principally not relevant here but do include that the frontage width of lots abutting a street should be consistent with typical street widths in the street; and the creation of new street crossovers should be avoided.

The decision guidelines for subdivision applications under the zone provisions are set out at Clause 32.01‐2. They refer to consideration of the State and Local Planning Policy Frameworks of the Planning Scheme and to the objectives and standards in Clause 56.

Clause 56 sets out mandatory (and qualitative) design objectives and discretionary design standards for the layout of subdivisions. They apply inter alia to land in the Residential 1 Zone. The objectives and standards are ones which apply throughout the State, however, and, while there is some reference to subdivision responding to the physical characteristics of the site, the standards are really not designed to respond to sites with the same sort of physical constraints which apply to the subject land. An assessment against Clause 56 was provided as part of the expert planning evidence given by Ros Hansen who was called on behalf of the Applicant (see Exhibit 20). We do not think that our considering the Application against the Clause 56 provisions would assist in determining the outcome of the Application. To the extent that matters in Clause 56 are relevant they are picked up in our matters for consideration elsewhere in the Planning Scheme.

Clause 52.01 of the Planning Scheme relates to open space contributions to be made when land is subdivided. It provides:

Page 28


A person who proposes to subdivide land must make a contribution to the council for public open space in an amount specified in the schedule to this clause (being a percentage of the land intended to be used for residential, industrial or commercial purposes, or a percentage of the site value of such land, or a combination of both). If no amount is specified, a contribution for public open space may still be required under Section 18 of the Subdivision Act 1988.

The schedule to the clause indicates the contribution required for a residential subdivision is 5 per cent of the net developable area of the land.

In both ESO1 and DDO21, decision guidelines for subdivisions are set out jointly with the decision guidelines for buildings and works. They include:

In the ESO: the SPPF and LPPF; the statement of environmental significance and environmental objective in the schedule;

the degree of dependence of the development on the coastal environment; the soil stability of the subject land; the amount of natural vegetation to be removed through the construction of any buildings or works;

whether adequate provision has been made for the landscaping and treatment of the site;

the value of any native vegetation to be removed in terms of its physical condition, rarity or variety;

the need to prevent soil erosion; the protection and enhancement of the landscape; the desirability of retaining a buffer strip of native vegetation along roads, watercourses and property boundaries; and

the recommendations of any relevant coastal action plan.

In the DDO: the SPPF and LPPF; the design objectives of the schedule; whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area;

whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area;

Page 29


the design requirements of the schedule including:

· Building height should not overwhelm the character of the area or dominate the commercial and civic heart of Port Fairy.

· A permit should not be granted to construct a building or construct or carry out works, which exceed a Design Guidelines Height of 7 metres.

· Excavation of sand dunes should be avoided to achieve the Design Guidelines Height.

the decision guidelines of the schedule being:

· … the Port Fairy Design Guidelines (2001) and the local policies relating to Port Fairy (Clause 22.01‐3 and 22.01‐4)...

The decision guidelines of the zone and overlays refer to the implementation of State and local policy.

4.2 State Planning Policy Framework (SPPF)

The purpose of State policy in planning schemes is set out at Clause 11.01. It is said to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is also stated that it is the State Governmentʹs expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

While there are a large number of policy elements of some relevance to this Application, the following sections of the SPPF of the Planning Scheme are those particularly relevant to consideration of the Application.

4.2.1 Settlement

Clause 14.01 sets out the objectives for planning for urban settlement as follows:

To ensure a sufficient supply of land is available for residential, commercial, industrial, recreational, institutional and other public uses.

To facilitate the orderly development of urban areas.

In planning for urban settlement at least a 10 year growth horizon is suggested including consideration of intensification and redevelopment of existing urban areas. Planning should also consider the limits of land

Page 30


capability and natural hazards, environmental quality and the costs of providing infrastructure.

4.2.2 Environment

Floodplain Management

The objectives for Floodplain Management in Clause 15.02 are to protect:

Life, property and community infrastructure from flood hazard.

The natural flood carrying capacity of rivers, streams and floodways.

The flood storage function of floodplains and waterways.

Floodplain areas of environmental significance.

Clause 15.02 requires the consideration of flood risk in the preparation of planning schemes and land use decisions to avoid intensifying the impacts of flooding through inappropriately located uses and developments.

Coastal Areas

The following outline of Clause 15.08, Coastal Areas, relates to the current version ‐ which was put in place in December 2008 accompanying the release of the Victorian Coastal Strategy 2008.

The clause sets out a number of matters relevant to this Application. The objectives for coastal areas are:

To protect and enhance the natural ecosystems and landscapes of the coastal estuarine and marine environment.

To ensure sustainable use of natural coastal resources.

To achieve development that provides an environmental, social and economic balance.

To recognise and enhance the community’s value of the coast.

To plan for and manage the potential coastal impacts of climate change.

A number of strategies to implement these objectives, to be co‐ordinated with the requirements of the Coastal Management Act 1995, are then set out:

Integrated planning for the future

Provide clear direction for the future sustainable use of the coast, including the marine environment, for recreation, conservation, tourism, commerce and similar uses in appropriate areas.

Page 31


Protect and maintain areas of environmental significance.

Identify suitable areas and opportunities for improved facilities.

This strategy included that decision‐making by planning authorities and responsible authorities should apply the hierarchy of principles for coastal planning and management as set out in the Victorian Coastal Strategy 2008, which are:

1. Provide for the protection of significant environmental and cultural values.

2. Undertake integrated planning and provide clear direction for the future.

3. Ensure the sustainable use of natural coastal resources.

When the above principles have been considered and addressed:

4. Ensure development on the coast is located within existing modified and resilient environments where the demand for development is evident and the impact can be managed.

Managing coastal hazards and the coastal impacts of climate change

Strategies for managing hazards and the coastal impacts of climate change are identified as:

Plan for sea level rise of not less than 0.8 metres by 2100, and allow for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and coastal impacts associated with climate change.

Apply the precautionary principle to planning and management decision‐making when considering the risks associated with climate change.

Ensure that new development is located and designed to take account of the impacts of climate change on coastal hazards such as the combined effects of storm tides, river flooding, coastal erosion and sand drift.

Ensure that land subject to coastal hazards are identified and appropriately managed to ensure that future development is not at risk.

Avoid development in identified coastal hazard areas susceptible to inundation (both river and coastal), erosion, landslip/landslide, acid sulfate soils, wildfire and geotechnical risk.

Page 32


Population growth and sustainable development

The following relevant strategies for managing population growth and sustainable development are set out:

Identify a clear settlement boundary around coastal settlements to ensure that growth in coastal areas is planned and coastal values protected. Where no settlement boundary is identified, the extent of a settlement is defined by the extent of existing urban zoned land and any land identified on a plan in the planning scheme for future urban settlement.

Direct residential and other urban development and infrastructure within defined settlement boundaries of existing settlements that are capable of accommodating growth.

Support a network of diverse coastal settlements which provides for a broad range of housing types, economic opportunities and services.

Encourage urban renewal and redevelopment opportunities within existing settlements to reduce the demand for urban sprawl.

Avoid linear urban sprawl along the coastal edge and ribbon development within rural landscapes and protect areas between settlements for non‐urban use.

Ensure development is sensitively sited and designed and respects the character of coastal settlements.

Promote ecological sustainable design techniques such as energy efficiency and water sensitive urban design.

Avoid development on ridgelines, primary coastal dune systems and low lying coastal areas.

Sustainable use, protection and management of environmental and cultural values

Strategies for protecting and managing environmental and coastal values include:

Ensure development conserves, protects and seeks to enhance coastal biodiversity and ecological values by:

- Encouraging revegetation of cleared land abutting coastal reserves.

- Maintaining the natural drainage patterns, water quality and biodiversity within and adjacent to coastal estuaries, wetlands and waterways.

- Avoiding disturbance of coastal acid sulfate soils.

Page 33


Protect cultural heritage places, including Aboriginal places, archaeological sites and historic shipwrecks.

Ensure that use and development on or adjacent to coastal foreshore Crown land:

- Maintains safe, equitable public access and improves public benefit whilst protecting local environmental and social values.

- Demonstrates need and coastal dependency.

- Is located within a defined activity or recreation node.

The State coastal policies refer to various geographic strategies at Clause 15.08‐3. The clause provides that decision‐making by planning and responsible authorities should be consistent with them. Relevantly they include the Victorian Coastal Strategy 2008 and the Coastal Action Plan for this area of the coast. Those documents are discussed below.

Conservation of Native flora and Fauna

The objective of Clause 15.09, Conservation of Native Flora and Fauna, seeks to protect and conserve biodiversity, including native vegetation retention and provision of habitats for native plants and animals and control of pest plants and animals.

Heritage

Clause 15.11, Heritage, seeks to identify and protect places of natural and cultural value, including places of Aboriginal cultural significance.

4.3 Policy documents

4.3.1 The Victorian Coastal Strategy

The SPPF requires that decision‐making by responsible authorities should be consistent with the Victorian Coastal Strategy. This strategy is a reference document of the Planning Scheme.

Under the Coastal Management Act 1995, the Victorian Coastal Council is required to prepare and submit a coastal strategy to the Minister for Environment and Climate Change every five years.

When the Application was first lodged, the Victorian Coastal Strategy (VCS) 2002 was referred to in the SPPF. By the time of the first hearing of submissions in this matter, in July 2008, a draft revised version (2007) of the VCS was available. As, at that time, the finalisation of the revised strategy

Page 34


was said to be imminent, with the agreement of the parties, the hearing was adjourned until after the VCS (2008) was released.

The VCS 2008 was approved and released by the Minister in December 2008. An accompanying Victoria Planning Provisions (VPP) amendment (Amendment VC52) was gazetted on the 19 December 2008. This amendment amended Clause 15.08, Coastal Areas, of the Planning Scheme ‐ introducing new and revised coastal planning policy statements.

The amendment gave direction for: the need to plan and manage the impacts of climate change in coastal margins;

the sustainable management and growth of coastal areas; and the protection of the coastal and marine environment.

Changes to the VCS

The Victorian Coastal Strategy 2002 promoted the concept of integrated coastal zone management emphasising the linkages between catchment and coastal management.

The Strategy described a framework for Ecological Sustainable Development which requires:

decision making to consider the environmental, social and economic implications in an integrated way;

a long term, rather than short term view should be taken when making those decisions.

A hierarchy of Principles for Coastal Planning and Management were presented and summarised as follows:

provide for the protection of significant environmental features;

ensure the sustainable use of natural coastal resources;

undertake integrated planning and provide direction for the future; and

when the above principles have been met, to facilitate suitable development on the coast within existing modified and resilient environments where the demand for services is evident and requires management.

Key outcomes were set out in the Strategy for each of these principles. With respect to suitable development of the coast, the Strategy stated that appropriate coastal development is development that:

Page 35


enhances protection and rehabilitation of the natural environment and biodiversity;

results in increased public benefit, having regard to environmental, social and economic implications;

is sensitively sited and designed, having regard to the ‘Siting and Design Guidelines for Structures on the Victorian Coast’ and ‘Landscape Setting Types for the Victorian Coast’;

minimises public risk;

is set back from the coast as far as practicable in line with vulnerability assessments;

facilitates multiple‐use of sites and existing infrastructure without resulting in overuse;

facilitates improvements of sites or existing developments that have a poor environmental or social performance; and

is consistent with the requirements of coastal planning strategies and plans and relevant planning schemes.

The VCS 2002 also set out objectives and strategies to achieve the key outcomes, grouped under six major themes as follows:

Marine and estuarine environments. Natural onshore environment. People on the coast. Access. Built environment and coastal infrastructure. Coastal dependent industry.

The VCS 2002 presented objectives for the built environment and coastal infrastructure including providing direction for the scale of use and development on the coast involving the management of the character of coastal towns and the establishment of township boundaries (see page 39 Actions 5.2.1, 5.2.2, 5.2.3). Figure 8 (page 42) in the Strategy defined suitable or appropriate development on the coast and listed the following objectives:

The extent of settlements is defined;

Areas between settlements remain largely undeveloped; and

The extent of recreational nodes are [sic] defined having regard to the principles for coastal planning and management outlined in this Strategy.

Page 36


Figure 8 also indicates where development on the coast is appropriate as follows:

A primary focus of this strategy is to protect the values of the coastal environment while providing for appropriate use. To this end, development pressure and infrastructure will be directed away from sensitive areas (most of the coast) and managed within:

1. defined existing settlements (activity nodes); and

2. recreational nodes.

Existing settlements (activity nodes) are considered to range from coastal cities and towns to smaller coastal townships.

The VCS 2002 contained very little specific reference to climate change impacts.

The 2007 Draft VCS identified a number of emerging challenges including climate change, planning and management of the marine environment, supporting an increase in the capacity of local government as decision makers and accommodating the projected increase in growth along the coast. The future challenges section of the 2007 Draft report at page 13 included an extensive discussion of the coastal impacts of climate change and also included, for planning purposes, an assumed sea level rise of approximately 0.4 to 0.8 metres by the end of the century.

Broadly the Victorian Coastal Strategy 2008 contains strategies and policies to direct development away from sensitive coastal areas and significant coastal landscapes and manage it within existing settlements and urban areas and within activity nodes and recreation nodes.

The VCS (2008) re‐states the hierarchy of principles for coastal planning and management (VCS 2002) and identifies three challenges facing coastal planning and management: climate change, population growth and marine ecological integrity.

Implementation of the VCS 2008 is delivered through coastal action plans and management plans, planning schemes that set out state and local policies for use, development and protection of land and regional catchment strategies.

The VCS 2008 sets out various policies concerning coastal planning for climate change. They are listed on page 38 as follows:

1. Plan for sea level rise of not less than 0.8 metres by 2100, and allow for the combined effects of tides, storm surges, coastal

Page 37


processes and local conditions, such as topography and geology when assessing risks and impacts associated with climate change. As scientific data becomes available the policy of planning for sea level rise of not less than 0.8 metres by 2100 will be reviewed.

2. Apply the precautionary principle to planning and management decision‐making when considering the risks associated with climate change.

3. Prioritise the planning and management responses and adaptation strategies to vulnerable areas such as protect, redesign, rebuild, elevate, relocate and retreat.

4. Ensure that new development is located and designed so that it can be appropriately protected from climate change’s risks and impacts and coastal hazards such as: ‐ inundation by storm tides or combined storm tides and stormwater (both river and coastal inundation)

‐ geotechnical risk (landslide) ‐ coastal erosion‐ sand drift

5. Avoid development within primary sand dunes and in low‐lying coastal areas.

6. Encourage the revegetation of land abutting coastal Crown land using local provenance indigenous species to build the resilience of the coastal environment and to maintain biodiversity.

7. New development that may be at risk from future sea level rise and storm surge events will not be protected by the expenditure of public funds.

8. Ensure that climate change should not be a barrier to investment in minor coastal public infrastructure provided the design‐life is within the timeframe of potential impact.

9. Ensure planning and management frameworks are prepared for changes in local conditions as a result of climate change and can respond quickly to the best available current and emerging science.

10. Ensure all plans prepared under the Coastal Management Act 1995 and strategies relating to the coast, including Coastal Action Plans and management plans consider the most recent scientific information on the impacts of climate change. (Our emphasis)

In the section dealing with climate change at page 14, the Strategy refers to the need for completion, as a matter of urgency, of further coastal vulnerability assessment work and consequent revision of policy. Work on

Page 38


vulnerability through the Future Coasts project (led by DSE) appears on page 37:

The program will also develop strategies, planning tools and other responses for coastal planners and managers to adequately manage the risks and minimise the impacts of climate change. The program is part of the Victorian Climate Change Adaptation Program.

This is repeated amongst the ‘Actions’ at page 38 which also include:

Investigate opportunities within the Victoria Planning Provisions to address climate change risks and impacts and, if necessary investigate the development of new provisions to manage coastal climate change risks and impacts.

The VCS (2008) also recognises the importance of the Coastal Spaces (2006) project. Coastal Spaces (2006) provides direction on managing growth pressures by consolidating urban development to existing settlements and urban areas (activity nodes) and protecting non‐urban landscapes between settlements. The Coastal Spaces Settlement Framework provides direction on which settlements have the capability to sustain and support spatial growth and infill development. The Coastal Spaces Settlement Framework ( Fig 12b, page 88 in the VCS 2008), identifies Port Fairy as having moderate growth capacity with some growth potential beyond existing zoned land or through infill but within defined settlement boundaries, in accordance with strategic planning for the settlement.

4.3.2 Ministerial Direction No 13 and General Practice Note

At the time of the amendment of the VPP (Amendments V59 and V60) the Minister issued Direction No 13: Managing coastal impacts of climate change. The Direction, while applying to amendments which would have the effect of allowing non‐urban land to be used for an urban use and development, requires that new development is based on an evaluation of the potential risks and presents an outcome that seeks to avoid or minimise exposing future development to projected coastal hazards.

More relevant is the General Practice Note: ‘Managing coastal hazards and the coastal impacts of climate change’ also released at that time. It states that it is intended to provide guidance to assist in defining coastal hazards, how climate change impacts on these hazards and general advice on planning responses to these hazards. It indicates that planning for the impacts of climate change on coastal hazards needs to be considered, inter alia, for development applications for individual parcels of land within existing zoning and overlay provisions of planning schemes. The General

Page 39


Practice Note advocates the Precautionary Approach in making decisions having regard to an understanding of the risk and consequences, and to make decisions that minimise adverse impacts on current and future generations and the environment.

The Practice Note includes:

Planning decision making for the impacts of climate change on coastal hazards should be guided by a process of investigation and number of general principles. These include:

Risk Avoidance: New use and development should be sited and designed in a way that does not unnecessarily expose future communities and assets to coastal hazard risks over its intended lifespan.

For coastal erosion, avoidance means ensuring that new use and development is not affected by the retreat of a coastline over the intended design lifespan.

For inundation, avoidance means ensuring that new use and development is not placed in harms way and is located beyond, or above an area prone to temporary inundation.

Integrated coastal planning: Requires the assessment of the future impacts of coastal hazard risk exposure on the economic, environmental and social wellbeing of people and communities in coastal areas.

Precautionary approach: The precautionary approach is an accepted principle in coastal decision making. It requires decision makers to act having regard to the best available science, knowledge and understanding of the consequences of decisions and in the context of increasing uncertainty, to make decisions that minimise adverse impacts on current and future generations and the environment. (Our emphasis)

4.3.3 Coastal Spaces Report

The Coastal Spaces Landscape Assessment Study prepared for DSE (September 2006) identifies and maps individual landscape characteristics in Victoria’s coastal regions, identifies significant landscapes and provides an implementation framework to assist local government and other agencies in managing development impacts within coastal spaces. The Study produced four relevant documents: a Background Report, a State Overview Report, a Municipal Reference Document and a Municipal Implementation Toolkit.

The State Overview Report (September 2006) describes Port Fairy in the Port Fairy Stoney Rises Character Area, as follows:

Page 40


The sheltered coastline of Port Fairy is lined with exposed development with many dwellings located on particularly significant dunes along the coastline.

That report assesses the coastline around Port Fairy to be of regional significance and visually significant for its landscape of coastal dunes and rocky outcrops with inland waterways.

The Municipal Reference Document (December 2006) describes the settlement of Port Fairy as:

Low coast vegetation and open pastures surround the historic fishing village of Port Fairy. The original town centre is situated on a flat landscape abutting the Moyne River estuary extending inland to the Princes Highway. The town has relatively recently developed south of the River along the stabilized low, dune coastline and built form now dominates much of the coastline. The settlement is experiencing significant pressure for growth along the coastline and inland along the Princes Highway.

The report provides a summary of community values within in this Landscape Character Area and includes:

The wider community felt that places that had been spoiled include the area to the west of the Moyne River which has been spoiled by housing that is exposed to views and the coastline east and west of Port Fairy which has been spoiled by subdivision and development along the dunes.

The report suggests that ‘Defining appropriate boundaries to the settlement of Port Fairy which contain linear urban sprawl along the coast and minimize built intrusion views from the coast and Princes Highway’ is an opportunity that could be addressed in local planning controls.

The Municipal Implementation Toolkit for Moyne Shire (December 2006) recommends a number of actions including the incorporation of the study outcomes into the MSS and local planning policies of the Planning Scheme.

This report, while not generally addressing detailed zoning issues, also provides the following comments on the zoning of the subject land:

Within the Shire of Moyne, a zoning anomaly that was identified by the draft Port Fairy Planning Implementation Strategy (Shire of Moyne 2006) was further confirmed through the Study’s Significance Survey. The zoning anomaly relates to land that is currently zoned Residential 1, located at East Beach, north of Connelly Street [sic]. The Port Fairy Planning Implementation Strategy identifies this area as being inappropriately zoned at the time of gazettal of the New Format Planning

Page 41


Scheme and recommends rezoning of the land to the Rural Conservation Zone due to its high visual and environmental significance, and a number of other strategic issues.

Recommendations

Consideration of the appropriate rezoning requires a broad strategic assessment in addition to landscape significance. The information contained in this Study does, however, form an important input into the consideration and appropriateness of the potential to apply the Rural Conservation Zone to areas that contain significant landscape values. From this context, this Study supports the recommendations of the Port Fairy Implementation Strategy to consider more appropriate zoning for this area given the landscape significance of the site.

4.3.4 Moyne Coastal Action Plan 2001

Clause 15.08 of the Planning Scheme relating to Coastal Areas, requires that land use and development planning be coordinated with the requirements of the Coastal Management Act 1995 (CM Act). The CM Act in turn establishes a framework for the preparation and implementation of Coastal Action Plans which set out policy directions for the relevant area of coast and imposing regulatory requirements on Crown land.

The schedule to the ESO also directs consideration of the provisions of any relevant Coastal Action Plan.

The Moyne Coastal Action Plan (CAP) details the direction for the future management of the coastal zone within the Moyne Shire. It was prepared by the Council in accordance with the CM Act. The foreword to the Moyne CAP indicates that it was finalised after extensive consultation with members of the Moyne community, interest groups and government departments.

At the time of preparation of the Moyne CAP, the VCS (1997) was in place. The Moyne CAP has not been revised to reflect the more recent VCS updates in 2002 and 2008.

The objectives of the Moyne CAP are to minimise impacts on the environment and cultural values of the coast whilst providing for appropriate development, infrastructure and public access. The CAP identifies key threats within the Moyne Shire that are impacting on or have the potential to impact on the coast and provides priority based recommendations for action to address the threats.

The Port Fairy Activity Node is identified in the CAP. Amongst the issues identified for the activity node, are exotic vegetation spread, dune erosion,

Page 42


visual amenity and impacts on Aboriginal cultural sites in the sensitive dune systems as a consequence of freehold title boundaries extending to the high water mark in sections of the river and beach frontages. It is noted that residential strip development has occurred in the primary dune systems on the western coastal strip and on the northern end of East Beach. East Beach is identified as an area that has sustained a major sand loss, making the beach unavailable at various times during high tide. Poor public access to the beach is also identified.

The Moyne CAP lists a number of objectives for the Port Fairy Activity Node. They include:

To manage development along the coastal strip to minimize environmental impacts to the dune systems and visual amenity of the coastline.

To provide defined beach access at controlled points to reduce erosion and improve safety.

To maintain and protect Aboriginal cultural sites.

To continue replenishment of East Beach.

To manage East Beach, Battery Hill and the Port Area as a Coastal Reserve with a Coastal Recreation Zone status for high intensity visitor use. (Our emphasis)

Recommendations for action include:

Provide beach access steps/ramps on East, South and Pea Soup Beaches at strategic locations as funding becomes available (Very high priority).

Implement planning controls to restrict strip development beyond the existing houses north of Connolly Street and west of the subdivision to the east of the Sand Hill Cemetery (Very high priority.

Maintain the current beach renourishment program for East Beach and ensure that sand excavated from the East Beach Dune system during building works is returned to the beach and not removed from the system (Medium priority).

Ensure that coastal development complies with the recommendations of the Moyne Shire Council Coastal Study and the Port Fairy Siting and Design Guidelines (Very high priority).

Page 43


4.4 Local Planning Policy Framework (LPPF)

4.4.1 Municipal Strategic Statement

The Municipal Strategic Statement (MSS) outlines strategies and policies affecting land use in Moyne Shire. It furthers the objectives of planning in Victoria to the extent that the State Planning Policy Framework is applicable to the municipality and local issues. It provides the strategic basis for the application of the zones, overlays and particular provisions in the planning scheme and for decision making by the responsible authority. The following parts of the MSS are particularly relevant to the issues in this case.

Clause 21.03: Factors influencing future planning and development

A number of factors of importance to Port Fairy’s future land use and development are identified including:

· The Shire is a major tourist destination, containing a section of the Great Ocean Road. It provides a wide range of beach, heritage, maritime and environmental experiences and provides a range of tourism facilities and accommodation facilities.

· Protection of those assets on which tourism depends is an important consideration in the future development of the Shire.

· The development of housing in sensitive locations such as the coastline is an issue.

· The sustainable management of the Shire’s coastal resources including identification and protection of significant environmental features and the need for clear directions regarding the future use and development of the coast.

Clause 21.04: Municipal vision

Council has adopted a number of goals which relate to the broad development vision for the municipality including:

Urban development

To have well maintained, healthy and thriving towns.

Economic development

To maintain and increase employment and to have real values of property increases…

Environment

To strive to have the cleanest environment in Victoria and to protect the natural environment.

Page 44


To have a balance between development and the protection of the natural environment.

Land use planning

To have balanced development and to protect the natural environment.

The land use and development vision itself includes:

A Shire where the settlements have distinct characters and identities and provide a broad range of economic and social opportunities that meet the expectations of the community. Where there is a strong sense of place and association, where people can live in a safe and healthy environment. Where the economy uses the strengths of the agricultural foundation to further diversify and improve production and increase opportunities for value added activities, industrial expansion, tourism and recreation and leisure experiences. Where the Shire is widely recognized for its spectacular coastline, personable towns and cultural activities and festivals. Where the settlements are strong and vibrant communities and also places of memorable heritage and enviable lifestyles for residents and visitors alike. Where resources are used in a sustainable way to promote the aspirations of its residents and meet the needs of tourists and visitors, while still valuing, protecting and enhancing the significant landscape, environmental features and heritage places for the appreciation of future generations.

(Our emphasis)

Clause 21.05: Settlement and housing

Clause 21.05 contains a list of key strategic issues for housing in the Shire. They include:

· There will be pressure on the defined urban edges of some of the towns within the municipality.

· The tourist population is likely to continue to increase.

· Port Fairy contains a range of natural and built elements, which contribute to a unique Neighbourhood Character and which, is being threatened by intensive forms of new development.

· Development in Port Fairy is placing pressure on views from the public domain on the coast and river environment, which contribute to the character of the town and are sensitive to the height of development.

Page 45


Housing objectives include:

· To define a sustainable urban/non‐urban edge to the main townships and settlements.

· To maintain compact urban forms that will allow for ease of service delivery and minimal infrastructure costs. Unplanned developments that have potential to adversely affect the landscape and environmental qualities of the municipality will not be supported.

· To recognise the different requirements of the population by allowing the accommodation of the population of the municipality within a range of dwelling types suitable for the needs of the community.

· To recognise the significance of local Aboriginal heritage and appropriately protect sites of archaeological, cultural and scientific importance in accordance with relevant State and Commonwealth legislation, in consultation with the appointed Aboriginal authority.

· To direct the built form and appearance of development in culturally and environmentally significant areas through appropriate design guidelines.

· To achieve a quality of residential development which conforms with accepted principles of sustainability and efficiency.

· To ensure that new development in Port Fairy respects built form and/or the coastal and riverine location of the area, including existing character, the integrity of the dune formations, maintenance of floodplains, native vegetation and significant viewlines to and from the coast.

· To protect the Neighbourhood Character of Port Fairy.

· To identify flood prone land and ensure that new development is compatible with flood hazard.

Relevant housing strategies include:

· To encourage a range of accommodation opportunities in urban areas including medium density housing to suit the various and changing needs of the Shire’s residents.

· To introduce mandatory building height controls to ensure that new development will not dominate the coastal and Moyne River estuary surroundings and viewlines of Port Fairy.

Page 46


· To encourage residential development within existing serviced areas and established settlements.

Clause 21.06: Environment

Clause 21.06 addresses environmental issues associated with development in coastal areas. It identifies the coastline as having particular landscape and environmental value and as an important recreational and leisure asset. It recognises the need to protect and enhance natural environments including coastal systems – particularly the cliffs and primary dune systems. It identifies the need to establish clear directions for the future use and development of the coast and to ensure development in coastal areas must occur in a sensitive manner that does not impact upon the environmental significance and sensitivity of the coast. The need to better understand coastal processes in order to protect the coast is recognised as well as the need to improve coastal access through the acquisition of land adjacent to the coast and providing fenced access points to the public.

The objectives for this clause include:

· To encourage restoration of degraded land, particularly stream frontages.

· To protect significant natural environments and where appropriate form effective open space and/or habitat corridors, along river and coastal areas.

· To maintain the integrity of the existing urban floodways and to identify new floodway areas outside the urban areas.

· To identify landscapes of high scenic value.

Strategies identified to achieve the objectives include:

· Use environmental overlays and zones to protect watercourses, recharge areas, significant landscape features, vegetation, eco‐systems and coastal dune areas.

· To protect watercourses, recharge areas, significant landscape features, vegetation, ecosystems and coastal dune areas.

· Maintain the integrity of the existing urban floodways by preventing development in floodway areas. Identify land subject to inundation and control new development accordingly. Incorporate into the planning scheme areas newly identified as floodways, or land subject to inundation.

The clause goes on to say that the Environmental Significance Overlay will be applied to areas adjoining the coast. It also seeks to apply the Significant

Page 47


Landscape Overlay to identified landscapes and indicates that local policy will be used to protect the values of the coast.

Clause 21.07: Economic Development

Clause 21.07 recognises that the economy of the Shire is predominantly based on agriculture and to a lesser extent on manufacturing, tourism and commerce. Tourism is seen as an important factor to the local economy with significant growth potential and Port Fairy is recognised as a key destination. Key issues for tourism include protection of those assets on which tourism depends and the need for clear direction for the future use and development of the coast.

Clause 21.08: Infrastructure and Particular Uses

Clause 21.08 provides an overview of a number of services including the transport infrastructure, water supply, ports and harbour facilities, energy and power and telecommunications. Port Fairy’s waste treatment system is described as having ‘large capacity services extending to the present edge of development’.

4.4.2 Local planning policies

Local planning policies are detailed directions that will guide day to day decision making about geographic or sectoral issues.

The local planning policies are arranged in four sections: 22.01 Settlement and housing; 22.02 Environment; 22.03 Economic development; and 22.04 Infrastructure.

Clause 22.01: Settlement and housing

This clause contains a number of sub‐clauses that address Aboriginal Heritage, Urban Floodway Local Policy, Port Fairy, Port Fairy Historic Residential Precinct and Port Fairy Historic Commercial Precinct.

Clause 22.01‐1: Aboriginal heritage

The objective of this clause is to promote the protection and management of Aboriginal heritage across all land in the Shire. It is policy that:

Where there is a known Aboriginal archaeological site, request a report be prepared by a suitably qualified archaeologist detailing the impact of the

Page 48


proposal on Aboriginal cultural heritage values, and this report will be referred for comment to the appointed Aboriginal authority.

Clause 22.01‐2: Urban floodway local policy

Clause 22.01‐2 of the Planning Scheme relates to flood liable land in the municipality. It relates to land in the Land Subject to Inundation Overlay (LSIO). This is the only type of flooding provision currently applying in the municipality: the Urban or Rural Floodway Overlay is not included in the Scheme. The policy which is unfortunately misnamed ‘Urban Floodway Local Policy’ includes in part that:

It is policy that:

In areas subject to the Land Subject to Inundation Overlay, it is policy that as first preference no fill will be allowed. Fill under a designated building footprint, outside a building footprint or for safe and proper access to and from the site will be discouraged.

Written justification to the satisfaction of the Responsible Authority must be provided by the applicant for any such fill, including why other construction techniques cannot be used.

This policy indicates that floodplain management is a considered to be a crucial issue in the urban areas of Port Fairy adjacent to the Moyne River and notes that the MSS identifies floodplain management as a significant issue in the development of the Shire. It records that a Floodplain Management Plan, based on a study, established the areas likely to be affected by a 1 in a 100 year flood event and that those areas are included in the existing Land Subject to Inundation Overlay. Flood heights are those established by the report, and vary along the length of the waterway. The clause includes that:

It is policy that:

All land thought to be liable to be at risk of flooding will be included within a Land Subject to Inundation Overlay, generally in accordance with the controls established by the relevant flood plain authority.

This policy applies to all land within the Land Subject to Inundation Overlay, including land that is partly in any other zone.

In areas subject to the Land Subject to Inundation Overlay, it is policy that as first preference no fill will be allowed. Fill under a designated building footprint, outside a building footprint or for safe and proper access to and from the site will be discouraged.

Page 49


Written justification to the satisfaction of the Responsible Authority must be provided by the applicant for any such fill, including why other construction techniques cannot be used.

The objective of this Clause is:

To identify potential flood hazards and provide a sound basis for the future development and use of land thought to be liable to be at risk of flooding.

The subject land is not at present included in any Planning Scheme control relating to flooding. It was acknowledged by the parties that the recent Flood Study completed by consultants for the Glenelg Hopkins Catchment Management Authority (as discussed below) (updating the Flood Management Plan which underpins the current LSIO) has identified the subject land as subject to flooding and that the study recommends that the land should become subject to a flooding control in the Planning Scheme. The recent study specifically recommends the land’s inclusion in the Urban Floodway Zone which is generally applied to land subject to more severe flooding with higher associated risks than that flooding occurring over land included in the LSIO.

Clause 22.01‐3: Port Fairy

The objective of this clause is to maintain and build Port Fairy as a strong economically sustainable settlement that provides services for the local community and retains its distinctive character based on the heritage features, coastal location and high quality urban design.

Policies are set out for Development, Urban Character, Housing, Commercial, Industrial, Infrastructure, Tourism, Accessibility and Environmental matters. The policies include:

Development

Development should be in accordance with the following framework plan. [The Port Fairy Framework Plan which is part of Clause 22.01 provides an indicative north eastern edge to urban development apparently at Connolly Street. This plan is discussed further in Section 13 of this Report].

Urban Character

The coastal and river character of Port Fairy should be retained and enhanced.

For all new development:

Page 50


· New buildings and works should respect Port Fairy’s built form and /or the coastal location of the area.

· Development should respect the historic built form and natural environment through the sensitive use of materials and colours.

· New development should respect traditional forms of landscaping and/or significant coastal vegetation….

Housing

A range of residential opportunities is facilitated which protect and reflect the important historical and amenity values present in Port Fairy.

Smaller lot subdivision and higher density types of residential development compatible with the character and appearance of the area be encouraged.

Infill residential development should be encouraged to strengthen the population base within walking distance of the commercial area…

Environmental

Significant environmental features which contribute to the appeal of Port Fairy, including the coastline, the Moyne River, the Lough and the significant areas of open space should be protected and promoted.

The coastline and coastal dunes around Port Fairy should be protected from inappropriate development.

More appropriate measures against natural hazards should be implemented through flood control overlay provisions, including building and fencing controls.

Clause 22.02: Environment

Clause 22.02 contains a number of sub clauses which contain policies that address the following matters:

Coastal Areas;

Rare and Threatened Species;

Potential for Groundwater Recharge;

Susceptibility to Mass Movement;

Pest Plant Management;

Steep Land;

Hilltop and Ridgeline Protection;

Flora and Fauna Local Policy; and

Page 51


Public Land.

Relevant policies include:

Clause 22.02‐1: Coastal areas

The key objectives of this clause are to protect the values of the coast and the sustainable use and development of the coast. The policy recognises the natural character of the coastal area, which is of special cultural importance to Aboriginal people and valued by the municipality and visitors from elsewhere. It also recognises the economic and social values of tourism and recreation in the coastal area. The dynamic, complex and interconnected nature of biological and physical processes in the coastal zone (terrestrial and marine) and the susceptibility of the coast to the effects of natural events, including sea level rise are also recognised.

It is policy that:

The coast will be protected by an Environmental Significance Overlay.

The Western Coastal Board will be consulted concerning developments on the coast.

All development should be in accordance with any adopted coastal action plan.

The development or draining of limestone depressions is discouraged.

The further clearing of remnant indigenous vegetation is discouraged.

Buildings and structures should not exceed 8.0m above natural ground levels

All buildings and structures should utilise non‐reflective exterior colours and materials that complement and blend with the natural features and elements of the surrounding coastal environment.

All development should provide substantial landscaping using environmentally suitable plant species in order to screen and blend development with coastal environs.

All development should be visually complimentary to the landscape setting.

Additional access roads leading to or running parallel with the coastline should be discouraged.

The further development of buildings and structures for agricultural, residential, commercial or industrial purposes on sand dunes or free hold properties should be discouraged.

Page 52


Soil removal and excavation close to the boundary of the coastal reserve should be discouraged.

Clause 22.02‐6: Steep land

This clause applies to land having a slope of greater than 20 per cent. New development is required to minimise earthworks and avoid any increase in the potential for erosion to occur, including the removal of vegetation.

Clause 22.02‐7: Hilltop and ridgeline protection

Clause 22.02‐7 seeks to protect areas of visual significance from inappropriate development, limit development on ridges and encourage revegetation.

Clause 22.02‐9: Public land

The objective of this clause is to integrate public land management with private land management. A number of policies to achieve this are outlined and include:

Public land should be managed in a manner which is compatible with adjacent private land and vice versa.

Much of the public land in the Shire is recognised as being of environmental significance and is an important home to many native flora and fauna species.

Public land should be accessible to the community.

The provision and construction of infrastructure on public land for community purposes is encouraged.

The provision of recreation facilities on public land is encouraged.

4.5 Proposed Amendment C21

Mr Guest also took us through the changes proposed to the Planning Scheme which would be introduced by proposed Amendment C21. This was in response to our request to do so.

That amendment seeks to implement key policy directions to protect coastal features and landscapes of significance that have been identified through a significant amount of strategic work, by applying an Environmental Significance Overlay (ESO) along the length of the coast of Moyne Shire and introducing a Significance Landscape Overlay(SLO) for four areas including Port Fairy.

Page 53


Various policy changes are also proposed to the Municipal Strategic Statement (MSS) to protect coastal features, landscapes of significance, remnant native vegetation along the coast and the environmental values of estuaries and coastal wetlands.

The following changes are proposed to the MSS: Clause 21.02 Municipal Overview would include reference to the Coastal Spaces Landscape Assessment Study and recognition of significant landscapes of the Shire including Port Fairy.

Clause 21.02‐3 Development Pressures would include reference to the pressures on sensitive landscapes along the coast.

Clause 21.03 Factors Influencing Future Planning and Development would refer to the importance of containing township development within defined boundaries and avoiding ribbon development. The requirement that planning for a sea level rise of 0.8 metres will be adopted for all development is proposed for inclusion.

Clause 21.05 Settlement and Housing is to include a new sub‐heading for Coastal Settlement. Additional Issues and Objectives are proposed to provide a clear policy direction for ensuring land use and development protects and respects coastal habitats and landscapes. Additional strategies are proposed which provide strategic directions to implement the protection objectives. They include:

Encourage development to locate a sufficient distance from the high water mark of the coast, estuary or wetland to enable protection from erosion hazards and the impacts of sea level rise and to allow for landward migration of shorelines, saltmarsh and wetland vegetation communities.

Ensure that townships and settlements have a definite visual edge, delineating the boundary between urban development and the natural landscape beyond.

Clause 21.06 Environment would include a new Clause 21.06‐2 Coastal Environment which describes key coastal features of the Moyne Shire. It includes the following:

The coast is under threat from the effects of climate change including sea level rise and increased storm surges. Rising sea levels may threaten development from eroding shorelines, increased cliff instability and landward penetration of saline water within estuaries. The potential risk hazard to coastal development needs to be considered in terms of siting, design and appropriateness to be located close to the coast and estuaries of the Shire. Development located close to coastal and estuarine areas may also threaten the capacity of the environment to adapt to climate

Page 54


change impacts through limiting the ability of wetland vegetation and shorelines to migrate landwards under rising sea levels and increased tidal penetration landwards. Such limitations can be in the form of sea walls and other protective structures which can effectively lead to the loss of coastal features such as beaches and wetland vegetation communities from coastal squeeze.

In our view the above changes do not significantly alter the way in which the present Application is to be assessed. The changes to the policy simply reinforce the same considerations called up by other Planning Scheme policies and provisions and supporting policy documents.

It would appear that while the ESO1 is to be retained for the subject land, some of the content of that provision would be altered.

The maps also indicate that the land would also be included in a new Significant Landscape Overlay (SLO5).

If this amendment were approved as exhibited, new (or at least restated) landscape objectives would apply to the Application for development on the subject land. They include:

To protect locally significant views and vistas that contribute to the character of the landscape, such as extensive vistas to low dunes and the open hinterland from the Princes Highway, and spectacular long range views to Tower Hill, and from other localised rises throughout.

To ensure that development in and around settlements and along main roads and touring routes does not impact on the characteristics of the landscape, including key views and viewing opportunities.

To ensure that long stretches of the coastal strip between Port Fairy and Warrnambool, retain a dominant natural character, free of visually intrusive development.

To retain an undeveloped appearance from foreshore and other public use areas.

Again we do not think that the new overlay provisions would significantly alter present considerations.

We understand that a panel has considered this amendment and advised the Council on its outcome. We are not aware of what further implementation if any has occurred.

Page 55


5. Consideration of the Application for Permit

The hearing was conducted over 10 days from July 2008 to April 2009. The Panel heard extensive submissions from the parties, and both DSE and the Applicant called expert coastal engineering and planning evidence. The Applicant called a variety of other experts including on urban design, landscape, off‐shore reef development, flooding and general infrastructure (see Appendix B of this Report). A complete list of the exhibits presented to the Panel is also included in Appendix C to this Report.

The Panel in company with representatives of the parties made an inspection of the subject land and surrounds on Thursday 17 July 2008. On the following day we made a second unaccompanied inspection of the area generally to the north of the subject site. The Panel Chair also inspected the subject site briefly in October 2008 when in the locality. Relevant Panel observations on the presence of hollows in the dunes near the golf course, the presence of Hooded Plovers on the beach, the angle of repose of the beach sand further north of the site, and the partial re‐covering by sand of the concrete footings to the beach steps just north of the subject site were matters reported to the parties at the hearing.

We have considered all that has been put to us in writing and at the hearing as informed by the site inspections and have concluded that we should recommend that the Minister should refuse the planning permit. Our reasons for that view are set out in the Sections 6‐12 of this Report.

Page 56


6. Shoreline recession

The issue of the hazard presented by inundation and erosion effects of the sea on the subject land under ‘normal’ conditions, and under an assumed scenario of a 0.8 metre rise by 2100 is the principal determinative issue in our recommendation on the Application.

6.1 What future erosion is likely or possible?

In assessing the extent to which the subject land is expected to be subject to shoreline recession, it is of assistance to first consider the history of development of the sand dune system and its past erosion. The estimates made of future erosion utilising the ‘Bruun rule’ are then considered involving, as directed by policy, a sea level rise of 0.8 metres by 2100.

6.1.1 Past and current erosion

The material placed before the Panel indicates that prior to the development of the dunes (6,000 – 8,000 years ago), Belfast Lough was a shallow embayment open to the sea. The action of wind and water gradually led to the formation of a beach, composed of medium‐fine grained calcareous sand with shell fragments, derived from the disintegration of the Bridgewater Group calcarenite; and parallel rows of sand dunes, composed of coarser particles and including more yellow (that is siliceous) sand than on the beach. Episodes of sand accumulation alternated with periods of removal, either by its being blown inland or stripped from the seaward face of the dunes by storm waves or tsunamis. Vegetation has played a key role in stabilising the exposed, higher dune surfaces.

Land to the east of the Moyne River was subdivided and sold by the Crown in 1852, at which time Beach Street was surveyed as the road to Warrnambool. In 1882, a Lands Department officer noted that a new road along the river (later Griffiths Street) should be substituted for Beach Street, as the survey pegs were being lost due to erosion and wind‐blown sand.

In the 1870s, river training works at the entrance to the Moyne River made a permanent change to the sand transport system along the beach. These works included curved training walls (‘moles’), and dredging of the entrance area. In 1916, the south‐west passage between Griffiths Island and the mainland was closed off. These works continue even now to limit the amount of sand available for longshore transport to replenish the beach and, indirectly, the dunes at East Beach.

Page 57


Rosengren (2005, Exhibit 50) studied maps from 1840 to the present, and concluded that ‘apart from substantial changes around the mouth of the Moyne River, the dimensions and form of the terrain between the coast and Belfast Lough closely resembles its present appearance’. However, he goes on to say that, based on comparison of the 1854 and 1992 maps, the dunes enclosing the ‘road to Warrnambool’ (Beach Street) have been lost, suggesting a recession of 20‐40 metres, although part of the sand was recovered by the establishment of an incipient foredune. He concludes that the overall rate of recession is slow, but could accelerate if the sea level rises.

Rosengren warns that the dunes are an unconsolidated body of material, and that a major storm or tsunami has the potential to erode the dune, resulting in metres of setback at one time. There are also high, steep slopes with the potential for the development of blowouts.

Later writers and witnesses at the hearing have generally supported the accuracy of Rosengren’s work and conclusions, and so do we. The Council representative added a few further details of settlement dates, and gave details of erosion of the town’s landfill site in the dunes to the north of the subject site (ENSR, Exhibit 7).

Mr Syme, in his submission (Exhibit 13), suggests that the site is at the point of maximum impact under certain severe wave events (driven by easterly winds), as evidenced by dune collapses on 28 April 2006 and 2 July 2008. He provided photographs which he had taken of both collapses. While Mr Syme is neither a scientist nor a professional photographer, we find his views, based on a long study of the area, credible.

A major influence on the seaward face of the subject land is now the rock revetment to the south, constructed in stages from about 1960 (to Manifold Street) to 1990 (to the northernmost existing house), and designed to protect properties and public infrastructure from Battery Point to the last house on East Beach from coastal erosion. While the revetment has apparently succeeded in this aim, it has also had the effect of accelerating erosion of the beach in front of it, and re‐directing dune erosion beyond the end of the revetment (the ‘end effect’). This effect may also be responsible for the erosion seen around the public steps to the beach from the car park located to the north of the subject site. These steps have had to be twice extended. By contrast, north of the steps, an incipient foredune and deposition of shell material can be seen, suggesting a net gain of sand in this more northerly part of the beach.

Page 58


6.1.2 Forecasting erosion: application of the Bruun Rule

We now consider the expert views put to us about the anticipated future shoreline erosion of the subject land under a rising sea level scenario. The Applicant and DSE’s coastal processes experts both utilised what is known as the ‘Bruun Rule’ to assist in an understanding how rising sea levels could affect the subject land.

The Bruun Rule

In 1954, a Danish scientist, Per Bruun, proposed a deceptively simple equation for predicting coastal recession as a result of sea level rise. The equation (later called the ‘Bruun Rule’ by his US co‐workers) and its underlying assumptions are set out in his 1988 paper (Exhibit 65). The Rule considers the budget of onshore/offshore movement of sand under a rising sea level scenario. It is based on the assumption of a closed and balanced system between the beach and near‐shore, and the offshore bottom profile. The assumptions in the model are: no net longshore transport of sediment in or out of the shoreline reach under consideration; and

no significant loss to dunes in a landward direction.

The Rule attempts to simplify a three‐dimensional dynamic system into a two‐dimensional steady‐state model:

If the sea level rises by “a”, and the width of the bottom influenced by the sea level rise is “l” extending to a depth “h”, the shoreline recession “s” is determined by s.h = l.a.

The equation is more usually written as: ‘s = (l/h).a’, and the factor (l/h) is referred to as the Bruun factor. In other words, if the sea level rises by 0.8 metres and the Bruun factor is, say, 50, the permanent coastal recession would be 0.8 * 50 = 40 metres.

Further simplifications, such as the West Australian government’s decision to adopt a constant Bruun factor of 100 for planning purposes, take the equation further into the realm of pragmatism and further away from its theoretical basis.

Criticisms of the Bruun Rule

Cooper and Pilkey (2004, Exhibit 63), who are respectively an Ulster and US academic, have jointly done a review of the Bruun Rule’s application.

They identify a number of specific problems with the Bruun Rule:

Page 59


The Bruun Rule is a “one model fits all” approach, which is unsuitable for a highly complex sedimentary environment such as a nearshore zone with large spatial and temporal variations in sediment supply, wave conditions and coastal retreat rates in variable geological frameworks. In addition there has not been a single field verification that the Bruun Rule actually operates as Bruun (1962) envisioned it.

They concluded that the Bruun Rule is no longer appropriate and should be abandoned. Their paper did not propose any alternative, the authors presumably intending that each coast should be investigated from first principles. They gave three broad reasons for their conclusion:

1. The assumptions behind the Bruun Rule are so restrictive that they probably don’t exist in nature: it is a 2D model that assumes a closed materials balance for the profile. There must be no net longshore drift. There must be no other source of sand transport ‐ aeolian, storms, currents etc. In short, the Rule is only likely to be applicable on a small number of coasts.

2. Omission of important variables: the Rule assumes all sand movement on the shoreface is related to waves and there is a sediment fence at the closure depth. It assumes there are no rock or mud outcrops on the shoreface. It assumes no sand is lost or gained in a lateral or perpendicular direction to the beach. However there are a variety of bottom currents, many of them storm related, that move sediment often in conjunction with wave activity.

3. Outdated concepts: several concepts now known to be erroneous provide the explicit and implicit foundations for the Bruun Rule.

Dr Rob Carter, a Queensland expert in stratigraphy, marine geology and the history of climate change (June 2008, Exhibit 39), was originally listed as a witness for the Applicant in these proceedings, but was not called to give evidence. In his report, he states that the Bruun Rule is not applicable to dunes containing cementitious material (‘consolidated paleozol horizons’) and not applicable to ‘cliffs’. In the absence of further explanation and cross‐examination, only little weight is assigned to Dr Carter’s views but which nevertheless are consistent with those expressed in the article by Cooper and Pilkey.

Application of the Bruun Rule

On the other hand, Mr Byrne, Mr Carley and Mr Patterson, all being persons with coastal engineering expertise (both Mr Byrne and Mr Carley gave evidence at the hearing, and Mr Patterson prepared reports for the Council – these are amongst the exhibits) all used the Bruun Rule to assist in future

Page 60


predictions of shoreline erosion though with varying degrees of confidence. They differ on specific calculations for the subject land. We discuss the differences between the two witnesses below.

Application by the Applicant’s witness

Mr Byrne, who was called by the Applicant, calculated a theoretical erosion/inundation line to be used a basis for housing setbacks. That line as we understand it might ultimately represent the new edge of the shoreline or face of the dune if the sea were to rise by 0.8 metres. His calculations combined three components: ongoing erosion, based on a linear extrapolation of erosion observed to date;

recession due to a sea level rise of 0.8 metres, based on the Bruun Rule; and

storm erosion, based on the computer model SBEACH.

To the resultant setback line would be added a further 5 metres if the houses were not to be constructed on piled foundations.

Mr Byrne’s recommended overall setbacks are summarised in Table 1.

Table 1: Setback proposed by Applicant (Note 1)

Distance from SW corner of subject land (m)

0 ‐ 150 150 ‐ 250 250 ‐ end

Ongoing erosion (m) 16 10 0

0.8m sea level rise erosion (m) 28 28 28

Storm erosion (m) 5 5 5

Sub‐total (m) 49 43 33

Foundation setback (if not piled) (m)

5 5 5

Total (m) 54 48 38

Note 1: While earlier reports by Mr Byrne’s firm suggest that setback is measured from the ‘southern boundary’ of the site [eastern boundary as referred to by us], Drawings TP01 Revisions G and H suggest that the setback is actually measured from the seaward face of the existing dune escarpment. We believe this to be the correct approach to defining the hazard line based on a real physical feature, and have used this approach in plotting the setback line on which Table 2 is based.

As noted earlier, the depth of the proposed lots ranges between 44 metres to over 80 metres and the east‐west dimension of the land overall is between 67 and 100 metres.

Page 61


The Panel has measured the position of Mr Byrne’s proposed setback line on each lot (averaging boundary points where the line is irregular) and has calculated the residual area remaining for development after this required setback from the hazard area is applied. Where the dune is landward of the setback line, this is taken into account in calculating the residual development area. It was common ground between the parties that there would be no building seaward of the current dune ridge. This is shown in Table 2 below.

It is to be noted that the common land and board walks and steps on the sea side of the lots would all be within the area of hazard. The steps and board walk would presumably have to be relocated from time to time due to erosion. It would also seem possible that once the common land was lost, the intrusion of these relocated works onto the private lots may at some stage become unacceptable to the owners.

Table 2: Effect of required setback estimated by Applicant

Lot No Nominal Depth in metres

Estimated Setback* in metres

Percentage Loss of Area due to Setback

Residual lot area not subject to hazard in square metres#

1 62 18 0 § 756

2 44 11 0 § 440

3 44 10 23 612

4 45 10 0 § 680

5 46 10 0 § 570

6 47 10 0 § 475

7 48 10 0 § 768

8 49 10 0 § 1287

9 50 10 0 § 1026

10 52 10 0 § 840

11 53 16 26 861

12 55 19 35 770

13 56 19 36 684

14 64 37 50 703

15 74 36 48 703

16 70 43 61 560

17 72 45 60 550

Page 62



Estimated Setback* in metres

Percentage Loss of Area due to Setback


18 77 51 66 725

19 82 45 53 828

20 84 44 52 741

21 82 45 52 792

22 87 48 56 980 Notes: * Setback for erosion, excluding foundation setback, measured from proposed property

boundary. § Existing ridgeline governs: setback line is seaward of ridge. # After deducting setback for erosion or ridgeline (whichever governs).

It can be seen that the loss of land within the proposed lots when the development setback line is applied is substantial – 8 lots would lose 50 per cent of their area and virtually so in the case of Lot 15. Lot 2 would have a residual area of only 440 square metres and Lot 6, 475 square metres. The residual building areas would be further reduced should the foundation setback of 5 metres also apply.

Application by DSE witness

Mr Carley, for DSE, adopts a similar procedure for estimating setback distances including application of the Bruun Rule. He like Mr Byrne acknowledges that there is a small element of double counting between the ongoing erosion and sea level rise recession figures, but this does not affect comparison of their conclusions.

Mr Carley’s recommended setbacks are summarised in Table 3. Table 3: Setback proposed by Carley

Distance from SW corner of subject land (m)

100 300 500

Ongoing erosion (m) 25 7 5

0.8m sea level rise erosion (m) 34 34 34

Storm erosion (m) 5 5 5

Sub‐total (m) 64 46 44

Foundation setback (if not piled) (m) 13 13 13

Total (m) 77 59 57

Page 63


The table above indicates that the building setback line would extend almost to Griffiths Street, putting virtually all land available for housing within the hazard area.

Again we have applied the Mr Carley’s delineated setback line to each of the proposed lots and have estimated the residual land available for development for each lot. This is shown in Table 4 below.

Table 4: Effect of setback proposed by Carley


Estimated setback in metres

Percentage loss of area due to setback


1 62 30 48 677

2 44 29 66 292

3 44 17 39 487

4 45 16 36 548

5 46 15 0 § 570

6 47 15 0 § 475

7 48 15 0 § 768

8 49 15 31 1118

9 50 15 30 952

10 52 21 40 681

11 53 26 49 592

12 55 31 56 523

13 56 36 64 382

14 64 45 70 422

15 74 58 78 298

16 70 60 86 188

17 72 62 86 258

18 77 65 84 337

19 82 65 79 370

20 84 65 77 352

21 82 67 82 296

22 87 69 79 464 § Existing ridgeline governs: setback line is seaward of ridge. # after deducting setback for erosion or ridgeline (whichever governs)

Page 64


It can be seen that five lots would have a developable area of less than 300 square metres with the lot with the smallest area being Lot 16. Twelve of the lots would lose some 50 per cent or more of their land to the hazard area.

Differences between Byrne and Carley

The differences in the results by the two experts as shown in the tables are due to different assumptions about the following factors: ongoing recession rates (without allowance for sea level rise) due to differences in assessed reliability of historical air photographs;

grain size of the sand (affecting its mobility); wave data; and closure depth in the Bruun Rule.

There was also some disagreement about the interpretation of the Bruun Rule itself as to whether it should include the horizontal depth of the dune in its calculations. Mr Carley adopted this approach.

Panel comment and findings

We are unable to say based on the evidence presented to us, which of the two expert views put to us by DSE and the Applicant on the likely extent of shoreline recession is the more correct.

Nevertheless, we note that even the most optimistic analysis of likely recession under a 0.8 metre sea level rise (by Mr Byrne), when the Bruun Rule is applied, is substantial – with the required setback for buildings beyond the area of hazard leaving a considerably reduced area available for development.

This gives rise to some serious considerations.

The shoreline recession process envisaged by Bruun assumes that the dunes (as they change formation and move inland) would be the same height above the new sea level as the present dunes are above the current sea level ‐ at least in so far as the current dunes have a ‘normal’ formation unaltered by Marram grass or other factors. Theoretically the dunes would therefore increase in height relative to land inshore of them. This is not an assumption confined to the Bruun Rule but represents a general understanding by coastal geomorphologists about the generalised process of dune formation in relation to changing sea levels. The contentious aspect of the Bruun Rule is the association claimed by him of a constant relationship between the amount of the sea level rise and the resultant shoreline recession in a closed and balanced system between the beach and near‐shore, and the offshore bottom profile – and its application to predict change along a real shoreline.

Page 65


Assuming for the moment that the theoretical process of dune reformation just described were to actually apply (that is a gradual movement of the dune inland and upward in response to the new sea level), it needs to be understood that it would in practice not likely occur as a gentle or smooth transition. The dune relocation and reshaping would respond to storm surge events as well as the more regular action of waves. Those storm events are expected to be more frequent and more severe as a result of climate change. It can be expected then that there would potentially be quite dramatic changes in the shoreline and the dune formation from time to time. Rosengren talks of metres of recession occurring in a single event.

We also think that the intrusion of sea water some considerable distance inland as weaker parts of the current and future dune line are breached from time to time cannot be discounted.

With this in mind, we note, by reference to the cross sections prepared by the Applicant’s consultant (at Exhibit 41), that many allotments are downslope of even the current dune ridge and the land slopes away even further to Griffiths Street and beyond. This being the case, if there was to be a breach of the dunes (as now located or as relocated westwards) seawater would run down through the development and then have an unimpeded path to Belfast Lough.

We also note that the setback line under the 0.8 metre scenario defined by both DSE and the Applicant would in some instances be inland of low lying areas currently proposed to be filled to facilitate the use of the lots for housing. Assuming no mitigation measures further seaward, these filled areas would be lost to erosion.

The potential for breaches of the current and future dunes from time to time as the sea rises and the shoreline moves inland also serves to illustrate the impracticability of the set back and ‘wait and see’ arrangement proposed initially by the Applicant for a 0.48 metre sea level rise, and again under a 0.8 metre sea level rise. Under that proposed arrangement, the dwellings would be set back landward of the hazard line and the owners required to wait for a nominated level of erosion to occur before works preventing further erosion could be put in place.

Given the usual variability which occurs in all natural processes, it would be necessary to add a temporal element to the trigger for preventative works, for example the sea reaching the nominated point on more than a specified number of occasions in a specified period. However, with sea level rises and storm events creating erratic and large intrusions from time to time, we think

Page 66


that there would be severe householder pressures to allow the works to be undertaken ahead of the trigger point being reached.

In light of the above factors, we think that the option of retreat or setback from the shore line is not an option which alone would work to protect any development on this land. If the land is to be developed for housing it must have preventative works put in place to halt the anticipated shoreline recession.

If it is inevitable that mitigation works would have to be done to protect development on this land rather than rely on setback as a solution to shoreline recession – this questions the purpose of having a setback line at all (except as relates to landscape impact on the beach).

The Victorian Coastal Strategy 2008 requires us to plan for 0.8 metre sea level rise. This is the figure that has been utilised in the above assessment of the issue of shoreline recession. While we were invited by Mr Morris, relying on the written evidence of Mr Carter and in some measure his own presentations to the panel considering the proposed Stockland canal‐based residential development at Point Lonsdale, to draw conclusions about whether or not that level is conservative, we decline to do so. We agree with the submissions presented by Mr Townshend SC for DSE that it is not our role: we are required to apply planning policy (unless consideration of net community benefit and sustainable development would dictate otherwise).

It is our conclusion based on the assessment of the expert evidence which inter alia employed a Bruun Rule analysis that a setback response to shoreline recession on this land under a 0.8 metre sea level rise is not feasible given the calculated extent of inundation and erosion, the limited depth of the land and because the required retreat or setback is downslope or at least not onto higher stable land. The presence of the (low lying and flood prone) Griffiths Street reserve and Belfast Lough to the west means also that there is no opportunity for retreat further. The evidence also raises the issue of the feasibility of the development given the resultant constrained sites for building.

6.1.3 Other evidence concerning erosion

Rather than rely only on theoretical analyses of shoreline recession in response to sea level rise, we have looked at other evidence relating to erosion which might indicate the severity of the future problem. We think that that evidence – principally of an empirical nature – confirms the view that dwelling development on this narrow strip of dunes (as would be facilitated by the proposed subdivision) is inappropriate.

Page 67


Photogrammetric analysis of the position of the dunes over time was undertaken by the experts. They examined high points on the dune system above 4‐6 metres on various air photos dating from 1947. This was said to be done this way as the higher part of the dune system would be less likely to be subject to short term change. It was concluded that the dune system was relatively stable. The report by Rosengren (Exhibit 50) supports this view.

We accept that it may well be true that the higher parts of the dunes, and more particularly the ridge forming the skyline, have not moved since at least 1947. It seems possible that the Marram grass which was first planted on this dune system more than 100 years ago has had a role to play in maintaining a degree of integrity of the upper parts of the dune system.

There is, however, considerable evidence of erosion in the 0‐4 metre AHD range. Erosion of the lower parts of the dune system is indicated by: the loss of Beach Street at the front of the subject site; the loss of the incipient dune present along the front of the site up to about 2005 and which remains to the north of the subject site. This incipient foredune is described on page 12 of the Rosengren report of 2005 (Exhibit 80):

An incipient, narrow, terraced or in places weakly ridged foredune or beach ridge rising 1.5 metres above high water mark occurs at the back of the beach along the central and eastern [referred to by us as ‘northern’] part of the site where it is over 10 metres wide. …….

It is eroding along all its extent in the study site and has been stripped from the southern part of the site adjacent to the boulder wall.

Rosengren goes on to say:

The dune is typical of sandy shorelines that experience periodical ‘cut and fill’ i.e., alternating episodes of accretion and loss. Calm weather constructive waves move sand onshore as berms and beach ridges which are built upward further by wind action as foredunes….

During storms and surges, the foredune is combed back by waves forming a sand scarp that may be several meters high. The rate and frequency of rebuilding of the eroded foredune effectively determines the long term stability of sandy beach and dune systems. The recent history of the foredune at East Beach has not been documented and is too narrow a feature to be identified on the maps and aerial photographs used in this

Page 68


report. It is likely to have extended much of the way around East Beach and has been eroded progressively from south to north as a result of changed wave and sand drift conditions following the construction of the break waters and particularly since the construction of the basalt boulder seawall.

Rosengren comments at page 17:

Steep dunes without incipient foredunes and with bare surfaces are prone to more rapid and sustained erosion.

hearsay reports about the Digby brothers remembering in the 1980s that in the 1920s and 1930s there were two dunes on East Beach between their cottage (near the surf club) and the beach (further south than the subject land) (Exhibit 17);

the required renewal and extension of the rock revetment in front of the dwellings to the south of the subject land over a 30 year period;

exposure of the sea side of the Council tip site (to the north of the subject site) in recent years;

severe erosion around the steps to the beach from the reserve just beyond the northern end of the subject site evident on our inspection – the extent of erosion is such that even what are obviously replacement uprights are left hanging well above the scoured beach;

the different beach profile apparent at the southern and northern ends of the beach; Rosengren describes this at page 17:

Much of the sand eroded from the beach and foredune during southwesterly storms is either lost offshore into deeper water or moved to the northeast to the lee of Reef Point. There is little opportunity for sand to be derived from the southwest, as both supply and delivery from that direction is reduced by the presence of the harbour entrance moles and the rock wall that precludes sand being sourced from foredunes.

the evidence of erosion at the base of the dune presented in photographs taken in recent times by local residents which show slumping and vegetation falling into the sea (see for example Exhibits 31 from Mr Mullany, Exhibit 17 from Mr Stewart and Exhibits 12 from Mr Pevitt. This was clearly evident on our inspection.

It can only be expected that the observable erosion which is now in the main confined to the lower parts of the dunes will be exacerbated with a rise in sea level of the kind anticipated in the planning documents, an increase in storm intensity, and/or an increase in wave height and intensity.

Page 69


What is particularly concerning is the absence now of the incipient dune along the front of the subject land – there no longer is a buffer protecting the base of the main foredune from the energy of the waves and, as we have noted, there is no sand being brought by longshore drift from the south to replenish it.

This being the case, it may well be that the generalised or ‘normal’ pattern of dune reformation will not occur at East Beach. The dunes may not move inland and increase in height to maintain their relationship to sea level as it rises. If there is no dune replenishment and increasingly severe wave attack in storm events, it is difficult to predict what formation the land would naturally assume.

Overall, the history of erosion at East Beach indicates a dynamic coastal system which is has been influenced by remote engineering works, and a fragile dune system subject to sea and wind erosion. We think that it would be foolhardy to continue to build on the dune system in the current state of concern/knowledge about rising sea level and shoreline recession unless satisfactory adaptation or mitigation measures beyond mere retreat can be found.

6.2 Can preventative measures be put in place satisfactorily to deal with this future erosion?

6.2.1 Options available

The Victorian Coastal Strategy (2008, Exhibit 84) at page 37 describes three options by which coastal development may be adapted to cope with sea level rise due to climate change: protect; accommodate; and retreat.

These are also described in the ‘Climate change and natural resource scoping study’ for the coasts of the Glenelg‐Hopkins catchment area prepared by SKM Consultants in 2005 (Exhibit 19).

6.2.2 Protection Measures

In addition to the ‘retreat’ element of the proposal, the Applicant has proposed several forms of protection.

Page 70


Applicant’s initial proposals

The Applicant’s initial proposition, as put by Mr Morris on the opening day of the hearing in July 2008, was that the Applicant would enter into an agreement made under section 173 of the Act to monitor erosion, then, when a pre‐determined ‘trigger’ point would be reached, to construct a sea wall or other barrier at the owners’ (owners’ corporation) cost. The corporation would then be obliged to recover its costs from the individual lot owners.

My Syme suggested in relation to this option that the Shire should set uniform levels of protection for the whole coast, not allow individual owners or developers to set their own.

We think that this option is not a satisfactory response to protecting the land for the reason that, as it stands, it raises many questions that have not been answered satisfactorily and may not be answerable: How is the ‘trigger point’ to be defined in the section 173 agreement having regard to the variability inherent in natural processes?

Would the barrier be constructed on Crown land (beach) or on private/body corporate property?

How would approval processes under the Coastal Management Act for any works on Crown land be managed?

How would the development be integrated with the protective barriers for other land and other coastal engineering requirements?

How would access be obtained to deliver the material for the sea wall and undertake the construction once the land were developed with housing – land based vehicles on the beach at low tide, from barges?

To what height or standard would the barrier be built and therefore what amenity and environmental impacts might there be?

Our further concern about a hard engineering option of this kind is that the existing rock revetment (‘sea wall’) to the south of the subject land, while offering some degree of protection to existing houses since 1960, is poorly constructed, causes depletion of the beach and causes local erosion of the dunes at its northern end. To extend the existing rock revetment to protect the subject land would exacerbate all of the above problems. It could well aggravate the problem of rubbish being exposed at the former tip site. ENSR, consultants to the Council (2008, Exhibit 7), have warned that ‘A breach of the sand dune could release waste into the beach and ocean.’

Another erosion management benefit claimed for the project in the early part of the hearing was that the required strengthening of the dune system at the southern end of the subject land, which was said to be facing an imminent

Page 71


breach, would be undertaken by the Applicant as part of the initial earthworks. Later in the hearing, the alleged imminence of the breach and the urgency of the works were not pursued. We believe that the dune weakness here is such that it requires only a moderate amount of remedial earthmoving sometime in the future. As such it should not be taken to be a substantial justification for the project.

Applicant’s later proposal

On Day 5 of the hearing in March 2009, Mr Morris presented a revised protection option, arguing that the now adopted policy figure of 0.8 metre sea level rise justified a changed approach. He said that instead the Applicant would be willing to accept a condition requiring an additional setback of building envelopes (Plan TP01 Revision H), and a requirement for a section 173 agreement to do either of the following: pay $1 million into a sinking fund to be invested and available to execute such protection work as may be thought desirable to protect the subject land, for example sea walls, beach re‐nourishment, groynes, or an offshore reef; or

pay immediately up to $2 million towards the cost of construction of an offshore reef along the lines advocated by Dr Black.

Dr Kerry Black, for the Applicant (Exhibit 70), suggested that an artificial reef, located some 500 metres offshore opposite the subject land, could protect the land without sacrificing the beach – in fact, the beach would be widened by the induced formation of a salient inshore of the reef.

Dr Black supported his suggestion for an artificial reef by summarising the objections to the option of reinforcement and extension of the existing rock wall: sand placed on East Beach will continue to be lost and will have to be replaced, from sources which will become more distant and more expensive;

rock walls initiate toe scour and end effects; rock walls deal with the effects of erosion, not the cause; and there is a risk to swimmers and board riders of being swept against a rock wall at high tide.

Mr Carley, for DSE, agreed that a rock wall could degrade the public beach below it.

Dr Black suggested that these disadvantages of rock walls would not occur with an artificial reef, consisting of sand‐filled bags (each of some 500 tonnes) placed to a computer‐generated design with its crest just below low tide

Page 72


level. The reef would cause waves to break offshore, thus dissipating their energy and reducing erosion at the high water mark.

Dr Black also suggested that, rather than persevering with maintenance of the existing rock wall and dredging operations, the whole of East Beach could be better protected by a series of three or four such offshore reefs, designed and installed at the same time to gain economies of scale.

Mr Byrne agreed that offshore reefs or breakwaters are more effective, but noted that they are also more expensive, than rock walls.

Mr Townshend, for DSE, noted that Dr Black’s proposed offshore reef design was very preliminary, based on limited information, yet the Applicant proposed a precise limit of funding it was prepared to offer. There was no process for examining the impact of such a reef on other stakeholders, he said.

Having considered all of the expert and lay evidence on the new protection options, we conclude that the new options are not satisfactory for the following reasons: the alternative of one off‐shore reef protecting the subject land has not been properly engineered and costed. It may well prove to be not practicable or financially realistic. It would require its own approval processes which may not be forthcoming. It may also exacerbate erosion elsewhere along the foreshore and be inappropriate for that reason;

in view of the uncertainties around the reef, it would not be proper to include this option and its funding as a condition of the permit. To impose conditions on a planning permit without being reasonably certain that they are capable of being complied with would be erroneous. The Administrative Appeals Tribunal had this to say in the case of Martyn Holland and Others v Colac‐Otway Shire Council (Appeal No. 1996/35706 unreported) in relation to granting a permit for a tourist establishment where much of the information central to decision making was proposed to be submitted and considered after the permit was granted:

Conditions are a potent solvent of difficulties and conflicts in planning matters. They are not, however, a panacea. It would be wrong for instance, to issue a permit, subject to conditions which upon reasonable analysis were unlikely to be capable of being met. So to do would amount in substance to the grant of a permit to make omelettes upon condition that no eggs are broken…

In our view… where there are serious grounds for doubting that a particular technical problem is soluble, it is wrong to grant a permit and regard the particular issue as dealt with by requiring solution of the

Page 73


problem to the satisfaction of a particular specialist authority. If the problem proves insoluble, either the applicant developer has been sent on a foolʹs errand and wasted a large amount of time and money or more likely, once development has commenced, the impetus will be such that solution of the particular problem which has proven impossible has to be compromised, so that ultimately a revised planning approval is granted which would not have been granted at the outset had the ultimate result been known….

such a substantial undertaking cannot be entertained in conjunction with the current permit application. It goes beyond what can reasonably be viewed as a qualifying condition and would require its own environmental assessment and planning approval processes;

although Dr Black suggested the artificial reef would require only little maintenance, it is unclear who would bear the cost and responsibility for this;

the alternative, of a series of offshore artificial reefs, may in theory be a better option for overall management of erosion at East Beach but the problems associated with a single barrier would be intensified;

the offshore reef funding of $2 million is proposed by the Applicant to be made available at the option of the public land manager for East Beach but only if the manager ‘commits to the construction of the reef to protect the subject land in the event of a sea level rise of 0.8 metres over the period to 2100’ (our emphasis). It is unclear to us what happens if the sea level rise to that period is only 0.48 metres (as the Applicant’s witnesses suggest) or the 0.8 metre rise occurs sooner than 2100. Would the funds still be available in those circumstances? We note that the funds are to be earmarked for the subject site alone. We envisage that there could well be disputes about whether works which also protect adjoining land would be eligible for funding. All of this is proposed to be given effect by a section 173 agreement to be entered into before the plan of subdivision would be certified. We think it is unrealistic, as any commitment could not be responsibly made by the public land manager to these works in advance of knowing what works would be required for the wider Port Fairy area which may influence the protective measures for the subject land; and

the sinking fund option suffers many of the same uncertainties and we note it is not subject to any time frame – presumably therefore there could be pressure for the money to be spent immediately on current erosion.

Page 74


6.2.3 Accommodating the hazard

As noted the Victorian Coastal Strategy gives as an alternative to protection and retreat – accommodation of the coastal hazards.

The subject proposal included an accommodation element in so far as it was suggested that the future buildings would be constructed on piles and this was proposed to be given effect through a section 173 agreement. While we accept that construction on piles may protect the dwellings themselves in the event of inundation, it would not protect vehicles, garages and household effects stored externally at ground level.

We have given consideration to the possibility that planning approval might be subject to a ‘sunset clause’, whereby the planning permission expires after a certain time. This may be possible in the case of buildings and works or for a use of land, but it is not possible to undo the creation of new land titles following subdivision in this way.

In this respect, we would also comment that even if there might be a requirement for an ongoing agreement that the subsequent approval for dwellings on this land must be subject to such a sunset clause, we expect that the past experience of difficulties of enforcing termination requirements may be repeated here.

We therefore conclude that there is no satisfactory solution currently available to allow the development of this land for housing by accommodating the erosion of the dunes which comprise the land itself and protect the housing from inundation and damage.

6.3 Panel conclusion on future erosion hazard

Our overall conclusion is that the land upon which the subdivision is proposed is a sand dune which is subject to ongoing shoreline recession and no satisfactory measures have been proposed which would manage the resultant substantial risk to property if the land were to be developed as proposed.

Page 75


7. Relationship to planning policy

The extensive policy context for the decision on this permit Application has been set out in Section 4 of our Report.

We have identified the following key policy statements which run counter to the proposal:

Ensure development on the coast is located within existing modified and resilient environments where the demand for development is evident and the impact can be managed [from Clause 15.08].

Ensure that new development is located and designed to take account of the impacts of climate change on coastal hazards such as the combined effects of storm tides, river flooding, coastal erosion and sand drift[from Clause 15.08].

Avoid linear urban sprawl along the coastal edge and ribbon development within rural landscapes and protect areas between settlements for non‐urban use [from Clause 15.08].

Avoid development on ridgelines, primary coastal dune systems and low lying coastal areas [from Clause 15.08].

Ensure that new development is located and designed so that it can be appropriately protected from climate change’s risks and impacts and coastal hazards such as: ‐ inundation by storm tides or combined storm tides and stormwater (both river and coastal inundation)

‐ geotechnical risk (landslide) ‐ coastal erosion‐ sand drift [from VCS 2008].

Avoid development within primary sand dunes and in low‐lying coastal areas [from VCS 2008].

To manage development along the coastal strip to minimize environmental impacts to the dune systems and visual amenity of the coastline [Moyne CAP].

To maintain compact urban forms that will allow for ease of service delivery and minimal infrastructure costs [MSS].

To ensure that new development in Port Fairy respects built form and/or the coastal and riverine location of the area, including existing character, the integrity of the dune formations, maintenance of

Page 76


floodplains, native vegetation and significant viewlines to and from the coast [MSS].

Development should be in accordance with the [Port Fairy Framework Plan which is part of Clause 22.01] [Clause 22].

The coastline and coastal dunes around Port Fairy should be protected from inappropriate development [Clause 22].

To ensure that long stretches of the coastal strip between Port Fairy and Warrnambool, retain a dominant natural character, free of visually intrusive development [Amendment C21].

Apply the precautionary principle to planning and management decision‐making when considering the risks associated with climate change [from Clause 15.08].

7.1 Applicant’s submissions

Mr Morris’ submissions about the effect of these policies on consideration of the Application addressed both the broad approach that should be taken to policy and detailed comments on particular aspects of the coastal policy.

His broader submissions included the following: many of the policies of the Planning Scheme are directed to the Council acting as planning authority rather than as responsible authority – the policy of not building on dunes was just such an example, he said;

no particular weight should be given to one State policy over another (such as Clause 15.08) ‐ but rather economic, social and environmental matters should be integrated with the objective of a net community benefit outcome as directed by Clause 11. He referred to countervailing policies such as those which identify Port Fairy as a coastal node and the need for a variety of dwelling types; and

policy is not mandatory but a guideline – merely one of the matters to be weighed up in deciding on a permit application.

Mr Morris’ detailed submissions on policy included: only little weight should be given to policy statements in the Moyne Coastal Action Plan 2001 about rezoning of the subject land which he said was a document not subject to a transparent process which properly allowed public input;

no primary dunes are involved here; the policy about not building on dunes needed to be read down in the context of urban Port Fairy – which is nominated for moderate growth; and

Page 77


in relation to the local policy at Clause 22.01‐3 which provides that ‘the coastline and coastal dunes around Port Fairy should be protected from inappropriate development’, Mr Morris submitted that the policy merely says in effect that the development must be appropriate.

7.2 Panel response

Mr Morris’ submissions about integrating policies in decision making reflects the comments of the Victorian Court of Appeal in Whitehorse City Council v Golden Ridge Investments Pty Ltd & Ors [2005] VSCA 198 (11 August 2005) in reference to State planning policy:

The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Governmentʹs expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

The Court also said of Clause 11 of the State section of planning schemes which it described as an introduction to the policy framework:

This introduction is of some significance. It is clear that the planning scheme contemplates that the application of relevant policy considerations to a particular proposal is intended to inform a judgment as to whether a proposal results in a net community benefit. It is not intended that individual policies can be read prescriptively or that their application will necessarily be free of potential conflict with other individual policies. What is intended is a judgment as to the net outcome assessed in a policy context.

The Panel is of the view that to approve the subject development would not achieve a proper balance of policies. There is no net community benefit to be gained by approval of this subdivision.

Our reasons for that view are as follows.

7.2.1 Balance of policies

In our view the overwhelming thrust of policy is that planning decisions should ensure that new development is located and designed taking into account the impacts of climate change on coastal hazards such as the combined effects of storm tides, river flooding, coastal erosion and sand drift. For the reasons set out in Section 6, we indicate that it is our view that, in

Page 78


light of the particular erosion and physical characteristics of this site, to allow further housing development would be foolhardy. It would be foolhardy because of the exposure to risk of climate‐change‐induced inundation and accelerated erosion caused by elevated sea levels and the absence of satisfactory adaptation measures.

We do not think that the policies which reflect the fact that the land is currently zoned Residential 1 and included within the urban growth boundary of the growing Port Fairy coastal node should be given a great deal of weight in this case in comparison to the environmental policies. This is for reason that the land is also subject to an Environmental Significance Overlay which is to be read together with the zoning as a package of controls. It is not unusual for a residential zone to be subject to an overlay – even an ESO – but this particular overlay in terms of the density of development that it envisages does not complement the urban zoning: it sits rather uncomfortably with it. The existence of the overlay control on the land is such that the ordinary expectations in relation to the Residential 1 Zone must be read down – and so too the policies which support residential development.

Accordingly, the coastal policies which recommend against development of this site ‐ which would increasingly be subject to coastal hazards and for which engineering solutions remain unresolved ‐ together with related policies about avoiding inland flooding hazards and avoiding fill in floodplains, must be the key determinant of the outcome of this Application.

We take the same approach to the balancing of the urban policies with the other key policies relating to not building on dunes and avoiding linear coastal development found in the Planning Scheme and documents to which it refers.

Broadly our approach is consistent with that recommended in the DSE submissions which were that the policies about the coast at Clause 15.08 are those which must be given greatest weight.

So far as the submissions made by Mr Morris about affording little weight to the Moyne Coastal Action Plan are concerned, we agree that in the circumstances that particular policy recommendations were being made about the subject land, it would have been fair that direct notice was given to the landowner so that the owner had an opportunity for input to the development of the policy. However it would seem that the considerable public notice arrangements described in section 24 of the Coastal Management Act were undertaken and the community in general was informed.

Page 79


We also note Mr Morris’ submission that the Planning Scheme references to the CAP 2001, which were introduced in 2000 with the new format provisions, were improperly (in legal terms) included, in so far as reference was made to a document which was then not yet in existence. He relied on the decision in Carousel Pty Ltd v Port Phillip City Council VICCAT 60.

Mr Morris may be correct in this submission but not much turns on it. We note the policy statements in the CAP about the land itself and about precluding development on coastal dunes, but there are sufficient statements to the same effect in other planning policy documents to not have to rely on the CAP as the basis for these policies.

We also think that this is a clear case of where the precautionary approach recommended in policy should be adopted by the decision‐maker. The precautionary approach is noted as an accepted principle in coastal decision making in the General Practice Note. It requires decision‐makers to act having regard to the best available science, knowledge and understanding of the consequences of decisions and in the context of increasing uncertainty, and to make decisions that minimise adverse impacts on current and future generations and the environment.

While Mr Morris argued that if the land were not developed this would amount to doing nothing rather than acting to manage sea level rise and coastal recession, and therefore would not be in accord with the precautionary principle, we do not agree. The principle recognises that decisions fall within the ambit of ‘acting’ on an issue. We think that deciding to refuse this Application as foolhardy in light of informed expectations about shoreline recession and sea level inundation at East Beach, and the limitations of the management options that can be applied here, falls within acting in precautionary fashion ‐ consistent with policy.

7.2.2 Policy should be applied

Mr Morris is correct in his submissions that policy is only one of the matters to be taken into account in making decisions on a planning permit and it should not be applied as if it were a requirement or control. However in our view policy has to be given considerable weight in decision‐making or there is little point in having it.

The comments on the role of policy made by Mrs Gibson, then Chief Panel Member, in her ‘Final Report on New Format Schemes’ are often quoted. They do, in our respectful view, indicate the correct approach to policy:

The panels believe that unless policies are carefully monitored, they have the potential to undermine the intent of the planning reform program by

Page 80


becoming de facto zone controls. The emphasis will shift from what is permitted in the VPP zone to what is permitted under the Local Policy. They will be used as a prescriptive measure rather than as a means to establish a performance base. There will be the temptation to rely on local policies as proscribing the extent of discretion, in the interest of ʺcertaintyʺ, rather than always measuring a proposal against objectives. Alternatively, there will be the temptation to cast objectives themselves as prescriptions.

On the other hand, unless local policies are ascribed a legitimate role in guiding the exercise of discretion over use or development, there is little point in having them. Establishing the appropriate balance would be of critical importance during the initial stages of operating the new format planning schemes. (Our emphasis)

As we have said, the balance of policy is against this development and we see no benefit to departing from policy that would outweigh its strict application and a refusal of permit.

In this respect the benefits of this development put forward in submissions and evidence for the Applicant are not such that a net community benefit would result. We have dealt with our concerns about the proposed arrangements for the private funding of the protection works, the urban design benefits and alleged satisfaction of housing need in Section 11 of our Report.

7.2.3 Key policies not only directed to planning authorities

In addition to the broad policy of ensuring development in coastal areas is sited and designed so as to avoid hazard, which we have dealt in depth in Section 6, there are, as we have suggested above, two other key aspects of policy with which the subject development is inconsistent. They are in summary: discouragement of development on primary (sand) dunes; and discouragement of linear development along the coast.

It was the first of these that Mr Morris suggested was a policy directed to planning and not responsible authorities. It might equally have been said, we think, in relation to the second policy. He said that the policy about avoiding development on sand dunes is a policy that affects zoning decisions rather than applications.

We agree that the State planning policies of the Planning Scheme can be directed to planning authorities as well as responsible authorities. It will also

Page 81


be the case that policies which are directive about location will frequently be relevant to strategic decisions about zoning and the like.

We note also that in many or most cases the State policies refer to which of these two planning functions they are directed towards. This is not the case with the State coastal policies as recently augmented.

We see no reason, however, to accept the assertion that these particular policies relate only to planning authority decisions. It is not unacceptable to have and apply policies relating to preferred or discouraged locations for particular development types. This is apparent throughout the State policy section of the Planning Scheme. The outcome of applying a locational policy can often be the resiting of the development. We note also that the General Practice Note on coasts of December 2008 makes it clear that decisions involving consideration of coastal hazards can be responsible authority decisions on permits.

The problem for the Application that arises here is that the policy suggests that none of this land is suitable for housing development – all of it forms part of the sand dune complex ‐ no resiting of development away from the dune is possible on this land.

7.2.4 Detailed critiques of policies

The primary dune issue

Mr Morris asserted not with a great deal of enthusiasm that this is not a primary dune and therefore did not attract the policies that discourage developments on primary dunes. There is no definition of primary dune in the Planning Scheme nor in the policy documents to which we have referred.

During the hearing some largely unsuccessful efforts were made to unearth dictionary or technical definitions of ‘primary dune’ which might resolve the matter. We were referred, however, to a definition in a set of Soil Erosion Control Guidelines produced by the then Department of Conservation, Forests and Lands in 1985 (and amended in 1988) (Exhibit 94).

The Guidelines describe a ‘primary dune’ as: A natural reservoir of sand, the primary dune provides the critical buffer between land and sea and is very exposed to winds. The vegetation is highly sensitive to trampling and difficult to re‐establish.

We are satisfied that the subject land does contain what can be described as a primary dune. This can also be described as the foredune. It is to be

Page 82


contrasted with an incipient dune – a much smaller dune found sometimes at the base of the sea face of the principal dune.

We would also say that given the site is totally occupied by a sand dune complex, it would seem that some or all of the development will be on the primary dune of the complex.

We note also that in the decision by the Victorian Administrative Appeals Tribunal in O’Grady v Moyne Shire Council (1997/40048)[1997] VICCAT 640 (8 September 1997) (also discussed in Section 9 of this Report), where the Tribunal was considering an application for an 11 lot subdivision and filling of ‘flood fringe’ land at 4 ‐16 Griffiths Street, the land was described as being on the primary dune fringing Port Fairy Bay.

Albeit not in the exact same policy context, the Tribunal said that it:

…generally accepts that there are a range of planning reasons why dunes both active and inactive fringing important beaches should not ordinarily be developed.

While the Tribunal went on to allow the development, the Tribunal’s reasoning included that:

… the development of the dune [in this location] has been committed for a very long time, and therefore coastal policy considerations which might apply in a more natural setting are not applicable in this case.

(Our emphasis)

At that time, the subject site at 228 Griffiths Street was included in the Agricultural Zone of the Port Fairy Planning Scheme.

We would also point out that the current policies relating to dunes are not all expressed as applying only to primary dunes but merely to (sand) dunes.

Compact development

We have earlier quoted the policies which encourage compact urban growth at Port Fairy and discourage sprawl ‐ particularly along the coast.

It is clear that the subject development would extend the finger of urban development stretching northwards along the coast.

Mr Milner argued indirectly that the proposed development was inappropriate because it would contravene this policy given the site’s relative remoteness from the town centre. He noted that there may be other areas nominated for development as far from the town centre as the subject land but they would be supported by a surrounding neighbourhood unlike

Page 83


the subject site. Mr Morris suggested that it was inevitable that new areas of development would extend the township.

There is logic to this argument. This site, however, would have to be one of the most remote in relation to the town centre. Further urban sprawl in this direction from the town centre runs foul of other policies relating to linear development along the beachfront and maintenance of rural inter‐nodal spaces.

Appropriate and inappropriate development

We have considered the argument for the Applicant that the Clause 22.1‐3 policy ‐ ‘the coastline and coastal dunes around Port Fairy should be protected from inappropriate development’ ‐ should be not interpreted to mean that the dunes should not be developed but, rather, that the development which occurs on them should not be inappropriate. This view was put by Mr Morris and Ms Hansen, one of the planning witnesses.

It seems to us that the Applicant may possibly be right so far as the intent of this policy is concerned – but it begs the question as to what is ‘inappropriate development’. We have for the reasons set out in this Report concluded that the subject development is inappropriate in any case.

7.3 Panel conclusion on policy

For the reasons set out in this Section and in some cases elaborated in other parts of our Report, we think that on balance the alleged benefits of this project in terms of positive policy outcomes are overstated. They are also are heavily outweighed by the proposed destruction of the integrity of the dune system by major earthworks; the resultant construction of dwellings on constrained lots sited close Griffiths Street, stretching along almost half a kilometre; the flood‐liability of the only access road to the land; the filling in of part of the floodplain; and importantly the creation of additional development on a site which is already vulnerable to erosion and which will be more so without satisfactory shoreline recession adaptation measures. The balance of policy is, we find, clearly against the development.

Page 84


8. The effects of land based flooding

Despite its not being included in a flooding overlay under the Planning Scheme, Griffiths Street, Port Fairy is already known to flood in 1:100 year and lesser flood events.

The material presented at the hearing attested to the understanding by the Council and the Catchment Management Authority that the flooding information underlying the existing Land Subject to Inundation Overlay in the Planning Scheme and the consequent representation of the extent and nature of flooding was no longer accurate. We were advised that a new flood study had been undertaken.

8.1 The Flood Study

The Port Fairy Regional Flood Study (Exhibit 32a) was commissioned by the Glenelg Hopkins Catchment Management Authority (CMA) in May 2007, and was completed in October 2008. The consultant responsible for the study and report, in six volumes, was Water Technology Pty Ltd of Melbourne.

The Catchment Management Authority has accepted and adopted the report by the consultant. In his submission to the Panel (Exhibit 32), Matthew Hayes for the CMA submitted that the study was an excellent body of work but pointed out that any results were only as good as the data on which they were based, and that the consultant had experienced some difficulty in calibrating the model against the 5 year ARI flood. Mr Hayes nevertheless said that given the limited history and quantity of original data, the consultant has used the latest computational techniques and software to produce a document equal to Australian best practice.

All other parties agreed that the Study was comprehensive and professionally conducted and reported.

Moyne Shire Council has not formally adopted the Flood Study. It has just received funding to introduce amendments to its floodplain management strategy, after which the currently applied Interim Guidelines for Floodplain Development around Port Fairy (2007) (Exhibit 51) will be revised. The next step will be for Moyne Shire Council, with the assistance of the CMA, to use the maps and data presented in the Flood Study to update the flooding controls of the Planning Scheme.

Page 85


In the meantime the data in the study provides an up to date understanding of the flood liability of land in the catchment including the property which is the subject of the present application.

8.1.1 The report

Volume 1 is the summary. It explains how the consultant used raw data and historical records to predict flood levels and flood risks for both inland catchment and ocean‐based flooding, and to generate draft flood overlay maps for use in the Planning Scheme. It notes that the last major flood event was in March 1946, and estimates that it represents a flood event with an approximate Average Recurrence Interval of 1,000 years. However, in 1946 (and in earlier events in 1870 and 1894), the catchment was ungauged, so the estimated flow must be regarded as approximate. The total area of the Moyne River catchment is 758 square kilometres, but the only gauge with any length of record is at Toolong, approximately 5 kilometres upstream of Belfast Lough, which has records from 1948 to present. Similarly, there are only three continuously‐recording rain gauges in the catchment.

Volume 2 lists survey data, including historic maps, used in preparing the flood model.

Volume 3 describes the hydrology of the catchment, the preparation and output of the RORB model, and the problems in calibrating it against both the 1946 flood and lesser, more frequent floods.

Volume 4 describes the hydraulics of the waterways. It describes features such as the Gipps Street Bridge (which withstood the 1946 flood) and the Rosebrook Bridge upstream (which did not). It includes a sensitivity analysis.

Volume 5 describes the risk assessment of the effect of floods of the extent predicted on houses and other structures in their path. The study concluded that, based on current development, flooding and sea level conditions, the damage caused by a flood of average recurrence interval 100 years would be of the order of $1,700,000.

Volume 6 shows graphically which areas would be subject to inundation and to what depth. The maps form the basis of flood zones recommended for adoption by the Shire Council. Two controls are recommended: the Floodway Zone based on 10% AEP, and the Land Subject to Inundation Overlay, based on 1% AEP.

Most of Griffiths Street and part of the subject site is shown as in the future Floodway Zone.

Page 86


8.1.2 Climate change

The Flood Study was completed just prior to the Government’s release of the Victorian Coastal Strategy in December 2008. However, the Flood Study included a section on climate change implications, based on low, medium and high change scenarios. The Government’s now recommended allowance of 0.8 metre sea level rise to 2100 corresponds to the ‘medium’ scenario adopted by Water Technology, and so it is easy to identify the anticipated changes in flood extent and severity. However, the consultant has pointed out that it is not yet possible to quantify the effect of climate change on rainstorm intensity, so an allowance must also be made for this factor.

8.2 Effect on subject land

The Study shows that flood levels are expected to be 3.1 – 3.36 metres AHD in the vicinity of the subject land in a 1 in 100 year event (taken as 3.3 metres for calculation purposes). This includes the effect of a 0.8 metre sea level rise, an additional 0.07 metre allowance for storm surge and a rainfall intensity increase of 50 per cent in the 1 per cent AEP hydrographics.

Given that the subject land rises away from the flood plain, most of the land would not be subject to inundation under this event and consequently under lesser flood events. Part of the land close to Griffiths Street would, however, be affected.

Because the scale of the Flood Study maps was particularly small, we requested that the Applicant supply us with a large scale map of the subject land showing the area to be inundated under a 1 in 100 year event in relation to areas to be filled and building envelopes. This continued the dispute between Mr Craigie (who gave evidence on flooding and drainage matters for the Applicant) and Mr Hayes as to the precise flood level to be defined for the subject land. Mr Hayes adopted a 3.28 metre line (intermediate between 3.1 and 3.36 metres) involving the assumptions set out above. This in effect accounts for a major storm event corresponding with a major flood event and consequently holding back the exit of storm waters to the sea). He also preferred to apply a margin for error to the figure due to the limitations of the input data to the flood modelling. Mr Craigie suggested that a freeboard allowance for buildings was adequate to deal with the error margins; and Mr Morris argued that there was no real prospect of a major flood event corresponding with a major storm event.

Both parties produced plans showing the effects on the subject land.

Page 87


The first and second figures in Appendix E show Mr Hayes’ and Mr Craigie’s flood lines respectively. Mr Craigie’s figure illustrates a flood level of 2.56 metres AHD rather than the 3.28 metres AHD line shown on Mr Hayes’ plan.

It is our view that provision of suitable freeboard for dwellings on the subject land could be provided which would protect housing to an acceptable level of risk from flood levels up to and including those experienced in a 1 in 100 year event.

It nevertheless should be noted that when the western part of the land subject to inundation from inland floodwaters is combined with the eastern part of the site said to be unsuitable for development due to inundation and erosion under a 0.8 metre sea level rise (even as defined by Mr Byrne), there is only a very small area of the land free from these significant development constraints. A comparison of the plans in the appendices of our Report illustrates this point.

However, the flooding of Griffiths Street – providing the only road access to the land ‐ presents a more significant problem for development of the subject site.

8.3 Griffiths Street access

All parties agree that access via Griffiths Street is the key issue.

The Flood Study indicates that, given the elevation of Griffiths Street is approximately 1.8 metres AHD, during a 1:100 year event (with an allowance for a 0.8 metre sea level rise), the road would be flooded to a depth of 1.4 – 1.6 metres. The road is also expected to flood to 0.1 metre under a 1:20 year event.

Mr Morris suggests that the extent of expected flooding should not be regarded as detrimental to approval of the Application.

The Applicant’s position is that residents of the proposed allotments would be in exactly the same position as residents of existing dwellings in the rest of the peninsula bounded by Port Fairy Bay and Belfast Lough. Mr Craigie noted that flood depths and velocities would be low, and that the criterion (d*v < 0.35 square metres/sec) applied by Melbourne Water for roads and cycleways could be met. He said that vehicular access would still be available for four‐wheel drive vehicles in the 20 year flood. Mr Craigie suggested that Griffiths Street might be elevated to overcome this access problem. In higher floods, the Applicant proposes that residents wishing to leave their homes could walk along the beach or the sand dunes, either to the Golf Club in one direction, or to the Gipps Street Bridge in the other.

Page 88


The CMA, through Mr Hayes, suggested that this situation cannot be accepted for a new subdivision. He pointed out that drivers attempting to negotiate Griffiths Street when under water, especially at night, would be placed in danger, and pedestrians even more so. He noted the significant danger to pedestrians negotiating the higher areas of the dunes crossed by property fences in stormy weather at night. Mr Hayes also opposed the filling of the flood plain which would result from the elevation of Griffiths Street (in combination with the filling of the subject land.

He further noted that while the Gipps Street Bridge apparently survived the 1946 flood, the approaches were flooded, and neither vehicular nor pedestrian access can be guaranteed to central Port Fairy during a serious storm or flood event.

The Panel agrees with the CMA position. That there are existing houses with access problems in the event of a major flood cannot be used to justify the creation of a hazardous situation for a new population of up to 50 or so people. In our view it would be contrary to orderly planning to allow a development that could well result in pedestrians (who might include persons who are disabled or injured) being required to negotiate either a flooded road, or a stormy beach or dune ridge, before reaching a safe evacuation point.

We also agree with the CMA that the filling of the flood plain is contrary to policy as would result from the elevation of the road and parts of the site.

We acknowledge that there have been development decisions made at the Victorian Civil and Administrative Tribunal (VCAT) in which the flooding of Griffiths Street has been set aside as a factor which would prevent approval. These relate to infill situations, however, in contrast to the present proposal to effectively extend urban development into new areas.

Notably in Luxton v Moyne Shire Council [2002] VCAT 102 (18 February 2002), (to which we were referred by Mr Guest) while VCAT approved the proposed two lot subdivision which was opposed by the CMA, this was well within the existing developed area of the town ‐ opposite the pedestrian bridge across the river. VCAT was of the view that there would be ample opportunity for residents to move to higher ground in the case of the lots in question, and also noted that the site is directly opposite the river and ‘there is a likelihood [of] boats being in a position to provide access in the event that Griffiths Street does flood’. A close reading of the VCAT reasons also indicates that the absence of ‘a proper study to determine flood levels’ had a role to play in approval of the application for permit.

We also refer to another such decision in Section 9 of our Report.

Page 89


We also have concerns that there would be flooding of Griffiths Street in lesser events. While the road and access to the land might be passable by four wheel drive vehicles as suggested by Mr Craigie, not all types of vehicles would be able to use them. It is simply not appropriate to require that all households on the subject land must have four wheel drive vehicles available to them.

We note also that under the proposed statutory controls included in the CMA flood study, the land is proposed to be included in the Urban Floodway Zone and not in the Land Subject to Inundation Overlay. The former control is required to be applied to floodways and the latter to flood fringe waters. Mr Hayes’ submission provides some understanding of the reasons for this: his submission refers to the relatively confined nature of the flood plain and the throttle effect caused by the port. We are satisfied that the flood characteristics have been properly assessed by the CMA consultant.

8.4 Panel conclusion on flooding

The extent of land based flooding of the only access road servicing the subject site as identified in the CMA Flood Study is a further reason why the subject site should not be developed for residential purposes as would be facilitated by the proposed subdivision.

Page 90


9. Extent of earthworks

9.1 Filling of the floodplain

The policies at State (Clause 15.08) and local level (Clause 22.01‐2) which discourage the filling of floodplains have been earlier quoted.

Both Mr Hayes for the Catchment Management Authority and Mr Craigie for the Applicant agreed in principle about the undesirability of filling on the floodplain, such as for the raising of Griffiths Street or of the approaches to the Gipps Street Bridge. However, they differed in the degree to which they thought the amount of fill associated with the Application would be problematic: Mr Craigie stated that in particular the loss of floodway resulting from the raising of Griffiths Street would be minuscule.

We were also referred to the CMA’s position in relation to another proposed development in Griffiths Street which was considered by the Victorian Administrative Appeals Tribunal (the predecessor tribunal to VCAT). It was suggested that in so far as the CMA had not objected to the filling of that site, the CMA was being inconsistent in their approach on this issue.

9.1.1 Application plan: accompanying earthworks

The Application plan (Plan TP01 Revision G) was accompanied by allotment cross sections dated June 2008 (Exhibit 41), which gave some indication of the very extensive earth moving that is proposed by the Applicant before the lots would be sold. The reshaping of the land would necessarily encroach onto the area subject to land based flooding from the Moyne River.

The net volume of earthworks is equivalent to a fill of 6,500 cubic metres. This is equivalent to filling the entire 490 metre length of the site adjacent to Griffiths Street to a width of 15 metres and a depth of 0.87 metre.

At the hearing the possibility of having to raise Griffiths Street to avoid inundation was also discussed.

While not necessarily accepting Mr Craigie’s description of all of this as ‘minuscule’, it is a small volume of fill in the context of the overall width of the Moyne River and Belfast Lough floodway.

Page 91


9.1.2 Revised plan: accompanying earthworks

The revised plan (TP01 Revision H) ‐ accommodating the greater building setback for a 0.8 metre sea level rise – relocates the building envelopes further to the west than in Plan Revision G and hence further downslope in many instances.

While the Applicant indicated that Lots 15‐22 would not have sea views even with the setback for a 0.48 metre sea level rise, it was indicated that with the increased setback for a 0.8 metre rise, Lots 11 to 14 would also potentially lose sea views. We nonetheless expect that there may well be pressures from future lot owners for more extensive filling on the lee side of the current dune crest, in an effort to obtain the sea views from the dwellings to be later constructed on the lots (albeit subject to absolute height limits).

Despite our indication that we would be assisted by information about the additional filling which might result, we were not presented with revised lot cross sections for Plan TP01 Revision H. We therefore ourselves attempted to estimate the additional fill which might occur.

In doing so we assumed dwelling footprints approximate to those shown on Plan TP01 Revision G, a maximum allowable height of the dwelling above the dune crest on each lot of 3 metres, and a maximum allowable overall height for the dwelling of 7 metres.

It is our estimate that that if the same view availability over the top of the current dune is to be retained for the dwellings on Lots 11‐14 under the greater setback from the shoreline as would be available with the initial lesser setback, then filling in the order of an additional 1450 cubic metres would likely be required. This equates to around an additional 25 per cent above the net fill amount earlier advised by the Applicant of 6500 cubic metres.

We would comment here that if it were to be the case that the height of the dune increased as the shoreline receded, the filling of the house sites to ensure views over the top of the dune as it is now, may be to no avail in the longer term.

9.2 Panel comment

We believe that there would be a tendency for the overall amount of fill on this site to increase as development would proceed. A larger volume of fill would depart even further from the policy and sound engineering approach of not filling in flood plains.

Page 92


Further, we have already referred in Section 6 to the severe constraint in terms of developable area imposed on some of the lots by the 0.8 metre sea level rise setback line even as estimated by Mr Byrne. Any further filling to restore sea views for dwellings under the greater setback scenario ‐ given the dwellings would be forced westwards and downslope towards Griffiths Street ‐ would have to be accommodated on the constrained development area. The likelihood of the filling occurring in the floodplain would be increased.

In the circumstances of the severe flood liability of the township of Port Fairy identified in the recent Flood Study this issue should not be lightly dismissed or taken as trivial. The issue of the filling of flood plains is in any case an incremental one and there have to be sound reasons for allowing it.

We have also considered the alleged inconsistency of the CMA views on filling of the floodplain by reviewing the Tribunal decision to which we were referred. In O’Grady v Moyne Shire Council (1997/40048)[1997] VICCAT 640 (8 September 1997), the Tribunal was considering an application for an 11 lot subdivision and filling of ‘flood fringe’ land in the Residential Zone of the previous Port Fairy Planning Scheme at 4 ‐16 Griffiths Street. This land is within the older part of Port Fairy, close to Battery Hill. At that time there were three dwellings on the land, there having been five earlier.

While it was true that the CMA did not oppose the filling of the flood fringe portion of the land – again adjacent to Griffiths Street – this was in the context of the following objective of then Clause 17 of the Planning Scheme which was:

(d) to allow development in floodway and flood fringe areas with appropriate control of uses which may be adversely affected by flooding and to remove urban flood fringe areas from the flood plain by filling of the land. (Our emphasis)

The Tribunal decision also indicates that that applicant had previously received permission to fill part of the flood fringe.

We think that awareness of the seriousness of flooding in the Port Fairy area has significantly changed since in the 12 years since that decision was made, as has the policy context. We note that the subject land is at present proposed to be included in the Floodway Zone of the Planning Scheme.

We would also say that we have additional concerns about the gross volumes of earth that are proposed to be moved on the site and the resultant difficulties of managing erosion by wind and rain of exposed surfaces until new vegetation is established and/or dwellings constructed. This is an

Page 93


exposed site where existing vegetation including Marram grass is currently assisting to bind the sand.

We would comment in passing that we found it somewhat concerning in light of the clear policy statements and the statutory responsibilities of the Catchment Management Authority, that the Applicant’s representatives at the hearing showed some resistance to the ‘without prejudice’ condition proposed by Mr Hayes that the proposed filling of the land would be subject to the consent or satisfaction of the Catchment Management Authority. We think this is a reasonable and indeed standard requirement.

9.3 Panel conclusion on earthworks

Overall we find the extent of reshaping of this site on the sand dune is excessive and would result in filling of the flood plain of the Moyne River contrary to policy.

Page 94


10. Approval under the Coastal Management Act

As earlier indicated the three sets of stairs which are proposed to give access to the beach from the subdivision extend from the subject land apparently onto the public beach area. The connecting boardwalks also may not be located on the subject land.

The Coastal Management Act 1995 (CM Act) has various purposes set out at section 1 relating to the strategic planning and management of the Victorian coast. The purposes include:

(e) to provide a co‐ordinated approach to approvals for the use and development of coastal Crown land.

‘Coastal Crown land’ is defined in section 3 of the CM Act as follows:

a) any land reserved under the Crown Land (Reserves) Act 1978 for the protection of the coastline; and

(b) any Crown land within 200 metres of high water mark of‐

(i) the coastal waters of Victoria; or

(ii) any sea within the limits of Victoria; and

(c) the sea‐bed of the coastal waters of Victoria; and

(d) the sea‐bed of any sea within the limits of Victoria; and

(e) any Crown land which is declared by the Governor in Council under subsection (2) to be coastal Crown land‐ but does not include any land which the Governor in Council declares under subsection (2) not to be coastal Crown land for the purposes of this Act;

The CM Act so far as the regulatory requirements of Division 4 are concerned relates only to the use and development of Crown land rather than non‐Crown land. Section 37 provides that:

A person must not use or develop coastal Crown land unless the written consent of the Minister has first been obtained.

This requirement is integrated with planning approvals under the Planning and Environment Act at section 61(3) as follows:

The responsible authority‐ (a) must not decide to grant a permit to use or develop coastal Crown

land within the meaning of the Coastal Management Act 1995 unless the Minister administering that Act has consented under that Act to the use or development; and

Page 95


(b) must refuse to grant the permit if the Minister administering that Act has refused or is deemed to have refused under that Act to consent to that use or development.

At best, so far as the subject Application is concerned, these provisions suggest that no planning permit can be granted for those works proposed on Crown land in advance of consent being granted under the CM Act. It was indicated to the Panel that no application for consent under the CM Act had yet been directly sought. It appears that if it were intended to allow this subdivision, it would not be possible to approve at the least the stairs and possibly the boardwalks as part of the planning permit.

We record here that we have also given consideration to the possibility that these structures have already been refused. Relevantly, section 38 of the CM Act provides:

Application for consent

(1) An application for consent to use or develop coastal Crown land must be made in a form and manner approved by the Minister.

(2) If the responsible authority under the Planning and Environment Act 1987 gives the Minister, the Secretary or the Department of Natural Resources and Environment, as a referral authority under that Act, a copy of an application under that Act for a permit for a use or development of coastal Crown land, that application is deemed also to be an application under this section for consent to that use or development unless consent has already been given under this Division for that use or development.

Section 39 then indicates that a decision on any such indirect application for consent must be made within 28 days and section 40(3) provides that if no decision is made within that time, the consent is to be deemed to have been refused.

While it was indicated at the hearing that notice of the planning Application was indeed given to DSE under the Act, Mr Guest for the Council advised that it was given to them under section 52 of the Act as an adjoining land owner rather than under section 55. We have checked the referral provisions under the Planning Scheme and it is possible that the native vegetation removal component of the Application could give rise to a section 55 referral. The extent of vegetation removal is less than clear, however, and it appears to relate only to the subject site. We have accordingly taken the view that consent has not yet been refused but rather that no application for consent has yet been made.

Page 96


To overcome this problem of the absence of prior approval under the CM Act, it was suggested to us that if a planning permit were granted it could be made conditional upon the steps being deleted from the plans before the permit plans were endorsed. This approach, however, is not satisfactory in our view.

This is principally because we do not believe that any housing should be allowed to be developed on this sand dune without steps to the beach being provided for use by the residents, so as to prevent the erosion of the face of the dune which would otherwise be inevitably caused by unconstrained access up and down the steep dune face. We would add that we also have concerns about erosion beneath the steps if they were to be provided – the same sort of quite severe erosion as is apparent beneath the steps leading down from the public reserve to the north to the beach. However, such erosion would have to be managed as it is critical that the steps would be put in place if development were allowed to proceed.

Deleting the steps from the plan by condition is also problematic in so far as it would seem to necessitate a section 76D amendment of the permit, if later CM Act consent were sought and obtained and planning approval was subsequently sought to reinstate the steps.

Mr Townshend for DSE suggested that to allow the subdivision but require subsequent approval of the steps would be to fall into error and allow a ‘piecemeal’ application to proceed. He referred to the decision of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485.

In that decision, the Court found that the application for a quarry was defective in so far as it did not disclose all of the associated infrastructure (access roads) and the land on which they would be located. A key element of the reasoning of the Court with respect to this issue was that if sequential applications are made for components of a proposal (‘piecemeal applications’) then the proper decision‐making process is constrained. The Court said:

Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in

Page 97


the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first (at p504).

It is clear that any subsequent application for the steps at the face of the dune ‘would be much dominated’ by the subdivision approval. Indeed Mr Morris submitted that it would almost certainly be the case that approval would be given for the steps under the CM Act if the planning permit was granted, as it was preferable that the houses be serviced with steps rather than have no steps for the reasons discussed above.

We are not sure, however, that the Pioneer case is on all fours with the present Application. This is in so far as the steps are not a completely essential or integral component of the overall development in the way that the roads were for the quarry in the Pioneer case. The steps are highly desirable and as we have said we do not think any housing on this sand dune should be allowed to proceed without them. That housing should not proceed without them does not mean, however, that the housing cannot proceed without them. The Pioneer quarry could, of course, not have proceeded without the access roads.

Mr Morris suggested a different approach, however. He submitted that a permit might be granted for the development with a condition allowing the steps to be constructed only after consent was also granted under the CM Act.

The fundamental objection to Mr Morris’ approach, in our view, is that the granting of a planning permit with a set of endorsed plans showing the steps (whether or not subject to a plan notation or condition that they would not be constructed unless approval was given under the CM Act) would nevertheless give planning approval for the steps. It may be that other events (specifically a refusal under the CM Act) would prevent the steps being built but this does not mean that planning approval has not already been given. The approval has been given – it simply is a conditional approval. In our view this is contrary to the legislative provisions.

It seems to us that, if it were thought appropriate to grant a planning permit, the only proper way for the CM Act consent and planning approval to be coordinated would be to delay the decision on the planning Application until the CM Act consent had been determined. If consent were withheld under the CM Act, the planning permit would have to be refused (see section 61(3)(b) of the Planning and Environment Act). No review would appear to be available.

Page 98


11. Other issues

11.1 Need and want in planning considerations

Mr Morris addressed the issue of need as part of his submissions for the Applicant that the planning controls currently applying to the subject land are appropriate. The issue is also relevant to consideration of the permit Application.

The issue of the ‘need’ for the proposed lots arises from consideration of one of the purposes of the R1Z which is:

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

It also arises from the MSS policy objective at Clause 21.05: ‘To recognise the different requirements of the population by allowing the accommodation of the population of the municipality within a range of dwelling types suitable for the needs of the community’.

Mr Townshend’s submissions for DSE suggested that there was no pressing need for housing in Port Fairy which might be weighed against the risk of developing the site.

Two of the planning witnesses presenting to the Panel addressed the issue of housing need in Port Fairy.

Ros Hansen who was called by the Applicant referred to it only obliquely in discussing the issue of the appropriateness of the R1Z. She suggested that the proposed subdivision would ’effectively provide an increase in the availability and volume of housing in Port Fairy which, in turn, will assist in strengthening the population base of the town, consistent with local policy in Clause 22.01‐2 (sic – 22.01‐3) of the Planning Scheme’. This policy appears in the ‘Tourism’ part of the policies. It provides:

The economic base of the town should be strengthened to provide employment and wealth generation.

She also said that she interpreted the MSS and the Port Fairy Implementation Framework Plan to say that the township has only limited capacity for growth given environmental constraints.

Rob Milner’s evidence for DSE, however, included that the 2006 ‘Port Fairy Implementation Strategy – Urban Design Framework, Context Issues and

Page 99


Directions Report’ identified that there are areas of subdivided but undeveloped land to the west of the Moyne River and north of the town centre. The study concluded that despite the environmental constraints applying to some of that land, there was a significant surplus of land that could address the estimated household growth over the next 35 to 50 years.

We confirm that this is also our reading of the ‘Implementation Strategy’. While we agree with Ms Hansen that the thrust of the tourism policies supports a stronger economic base and by implication population growth, residential development in any part of the township potentially would assist in this regard.

Mr Morris also addressed the issue of housing need and the proposed development as part of his closing submissions. He advanced the argument that in so far as there would be willing buyers for these lots which have sea views, and the lots are therefore sought after or ‘wanted’, this should be considered to be equivalent to there being a need for lots of this kind (whether or not there is a need for housing land generally in Port Fairy). He said that this is the proper planning approach to ‘need’: in a market system, he said, need is identified by ‘people voting with their dollars, with their wallet’.

We note the references made to the market demand for housing at East Beach in the Tribunal decision in Farnhill and Ors v Moyne Shire Council [1999] VICCAT 132 (9 February 1999). In his decision allowing an applicant’s appeal concerning a two storey replacement dwelling at 127 Beach Street, Mr Barr commented in relation to the fourth ground of review (which was: ’The proposal is consistent with the existing Port Fairy Planning Scheme and the proposed Moyne Planning Scheme as exhibited’):

There can be no doubt that these prime foreshore lots and those in Griffiths Street will continue to prove attractive for redevelopment in order to capitalise on the magnificent setting overlooking Port Fairy Bay.

Mr Morris also referred to the words of the Council submission to the Panel considering Amendment C3 to the Planning Scheme which were reported in its report of May 2002. Reference was made to the likely ongoing strong demand for residential properties in Port Fairy – ‘especially those with outlooks over the sea or the Moyne River’.

In our view the interpretation of ‘need’ advanced by Mr Morris is the antithesis of a planning understanding of need.

The issue of ‘need’ is discussed in a number of decisions by the Planning and Environment List at VCAT and its predecessor tribunals. ‘Need’ is accepted

Page 100


in those decisions as conceptually a type of social effect (see Australian Retirement Communities Pty Ltd v Shire of Eltham [1988] 1 AATR 305 @312) and the view that ‘need’ in planning does not equate to ‘demand’ is reflected in various decisions dating back more than 20 years.

The seminal case on this is perhaps Shell Company of Australia Ltd v City of Frankston [1983] 8 APA 126 @133 where it was said:

The concept of need in town planning terms is not the same as demand. Thus the fact that the [proposed use or development]…is likely to be profitable does not show a need in town planning terms. Moreover the concept of need is not concerned with the means of the applicant. When the word ‘need’ is used in a town planning sense, it must mean community need. It is not necessary to show an element of urgent community necessity for a facility. Rather, need connotes the idea that the wellbeing of a community or some part of it can be better or more conveniently served by the provision of a particular facility.

We agree with that view. We understand that the approach taken in Shell to need – its being a public or community need rather than the ‘private’ desires of one or even a few individuals in the community ‐ to be the approach still relevant today. The Shell decision was taken in the context of the same ‘mixed economy’ as in place today – where government regulation and development activities and private sector activities coexist.

The Shell decision, in describing the public nature of need, is perhaps less direct than it might have been in identifying the type of ‘demand’ which is not public need ‐ as market demand. Rather it refers instead to the resultant profitability of a project.

Perhaps because he was aware of this decision, Mr Morris’ submissions suggest that the proposed subdivision project is needed because there would be persons in the community who would want to purchase the lots – their desires giving rise to a ‘need’ for the lots.

In our view, however, the profitability of a project and the presence of willing buyers in the market for that project or its outcomes go hand in hand. Together or separately they do not equate to a public need.

We also do not think that the observations made by VCAT or the Council submissions to the C3 panel in any way support the approach promoted by Mr Morris – they seem to us to be nothing more than a recognition that the land with beach or river views in Port Fairy is highly marketable when it is available. In neither case is there any suggestion that this means that more is required. Ms Hansen conceded this point in relation to need under cross

Page 101


examination, saying that ‘everyone aspiring to a sea view is not a planning criterion’.

One of the objectives of the planning framework established by the Act set out at section 4(2) is:

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

This ‘triple bottom line’ of planning assessment of proposals in terms of social, economic and environmental consequences recognised in that objective is carried forward into State policy in the Planning Scheme – which includes at Clause 11.02 that:

The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

Clause 11.01 makes a similar policy statement and adds the notion of intergenerational considerations:

Planning, under the Planning and Environment Act 1987, is to encompass and integrate relevant environmental, social and economic factors. It is directed towards the interests of sustainable development for the benefit of present and future generations, on the basis of relevant policy and legislation.

The intergeneration considerations reflected here are also referred to in Whitehorse City Council v Golden Ridge Investments Pty Ltd & Ors [2005] VSCA 198 (11 August 2005), where the Victorian Court of Appeal said in reference to the objectives of planning set out at section 4 of the Act that:

It can be seen that the objectives of planning extend beyond the regulation of use and development of land to the positive provision of appropriate land use and development and a satisfactory environment. The objectives are in part facilitative and encourage appropriate development. They also require the present and future interests of all Victorians to be balanced. (Our emphasis)

In the context of the broad issues and community‐focussed approach to assessment of proposals established by the Act and State policy, it would make no sense at all if the ‘need’ for housing ‐ which is to be weighed against and may potentially lead to the setting aside of other factors inimical to the

Page 102


approval of the Application (see Shell) ‐ were to be simply interpreted as equating to the market desires of a limited group in the community.

11.2 Urban design and the urban edge

A number of witnesses were called on behalf of the Applicant to give evidence concerning the urban design aspects of the project, notably Mr Biles on urban design and Messrs Dance and Fraser on landscape design (see Exhibits 22, 35 and 36).

We accept from the evidence that was presented that some careful thought had been given in these terms to the design of the subdivision and the housing which would likely be built on the lots. This planning was done initially when 35 lots were proposed on the land. The witness statements later prepared for the hearing then commented upon the revised 22 lot plan (Plan TP01 Revision G) which was designed around Mr Byrne’s setback line to accommodate a 0.48 metre sea level rise.

The development concept presented to the Panel involved housing constructed of natural or at least unobtrusive materials nestling in the dune system. The future housing is proposed to have a maximum overall height of 7 metres above ground (later revised to be above filled level) and no higher than 3 metres above the crest of any current dune on the lot. This is intended to be imposed by title restrictions. The plan for the site envisaged the planting of the common areas with indigenous species – predominantly grass species on the windward side of the dunes and taller shrubs and trees in the lee. Later private planting would take place on the lots.

The case was presented that a residential development of this kind would create a transition between the existing more prominent dwelling developments to the south and the public and rural land generally to the north. It was argued also that the car park abutting the northern boundary of the site should signal the end of urban development.

We accept that a design concept with the above design features would represent a better residential outcome for the site than the type of development which has occurred to the south on the dune system.

The design concept is substantially compromised, however, when the greater setback line for a 0.8 metre sea level rise is applied – even as calculated by Mr Byrne. The revised building setback line is at least 11 metres further to the west on the land. This is illustrated by Plan TP01 Revision H which is proposed by the Applicant to be substituted by condition. On that plan the building envelopes which had earlier been shown as irregularly placed in response to the topographic features of the site are instead shown as shifted

Page 103


westward and lined up in regular fashion along the street frontage. Any sense of the claimed ‘transition’ in urban form would be lost, we think, except to the extent that common area landscaping might provide a common more natural theme. The development would essentially present as ‘more of the same’. This would be especially true when the land was viewed from Griffiths Street and the Princes Highway west of Belfast Lough.

Of course no matter how pleasantly designed the buildings or attractive the landscaping, the site remains threatened by inundation and erosion. This is a fundamental site constraint which has not been satisfactorily met by the proposal.

11.3 The issue of precedent

Mr Morris sought to argue that we should recommend approval of the proposed development on the basis that the works which may be required to protect the land from rising sea level would be funded (at least in part) by the developer or owners and the public purse would not be drawn upon. This, he said, would set a desirable precedent for coastal development in light of the policies now adopted concerning sea level rise.

The management of the effects of rising sea levels and increased and more severe storm events associated with climate change along the coast is a mammoth and enormously expensive task facing all levels of Government. We acknowledge therefore that there is some appeal to this argument that partial funding of protective works by private landowners might set a desirable precedent.

In our view, however, the offer of private funding for works, which really are only necessary because it is proposed to develop the land and which are not yet defined or approved, should not detract from the fundamental assessment of whether the development itself is appropriate and the consequences of the works themselves.

We have concluded that this subdivision should not be approved for the reasons set out in earlier sections of this Report. Fundamentally the proposal is not supportable in terms of planning policy and other considerations. That there would be private funding for the supporting works does not negate the fact that the project is not desirable.

Page 104


12. Is a reduced scale of development appropriate?

We are conscious that there have been proposals to develop this land for housing for many years and indeed Mr Morris requested that we give serious consideration to alternative forms of residential development for the land to bring the matter to an end one way or another.

12.1 Previous entitlements

Mr Morris also asserted that under the Port Fairy planning scheme in place before the current one was introduced in 2000, the then land owner would have been entitled to develop four houses on the land – that is one on each lot.

We note also that an officer’s report to the Ordinary Council Meeting of 27 July 2004 suggested that at that time if the land was backed zoned to Rural Zone, an application for planning permit could be lodged for four dwellings – one on each of the four existing titles.

We have reviewed the provisions of the Port Fairy Planning Scheme approved by the Minister for Planning on 16 February 1988 and which was in place until the new format scheme was approved. The entitlements for dwelling development are not well set out but we believe that they indicate that the assertions about dwelling ‘entitlements’ are incorrect.

The Agricultural Zone provisions were set out at Clause 7 of the old scheme. Clause 7 indicated that land may not be used and developed except in accordance with the table to that clause. The table indicated that the use and development for land as a house was in ‘Column 3’ ‐ that is no permit was required provided certain condition were met (in this case setbacks).

The Clause 7 table also indicated that a permit was required to subdivide land ‐ that is subdivision was included in Column 4 of the table.

Permission for subdivision was also required by sub‐clause (3) of the Clause 7 (in part (a)). Sub‐clause (3)(b) then provided that the minimum sized lot that could have been created was 4 hectares with a 140 metre frontage, subject to certain exemptions in sub‐clauses (3)(c) and (d). The exemptions included irregularly‐shaped lots. Under that provision no additional lots could have been created on the subject land. Further exemptions included a subdivision for the purpose of creating a lot for a dwelling existing on 26

Page 105


June 1968 (but we have not been told that the former police house remained as late as 1988) and for one house additional to such a dwelling.

Importantly another sub‐clause (7(4)) related to houses. It provided that:

Notwithstanding the provisions of sub‐clause (3)(b) of this Clause, the erection of one house is permitted on an allotment lesser in area or frontage than is prescribed in the said sub‐cluse (3)(b) provided such allotment existed and was separately owned on 26 June 1968, and provided further that where two or more such allotments are contiguous and in the same ownership on 26 June 1968, they shall be deemed to be the one allotment.

This ‘separate tenement’ provision would (based on the 90 year ownership of the land by the Digby brothers’ family (referred to by Mr Syme – see Exhibit 13A)) to have restricted the entitlement to one house on the land.

12.2 Fundamental unsuitability for residential purposes

Even if we are wrong about this, we are of the view that any less intense residential development option than now is proposed (which might be effected by permit condition or by a fresh application) would still not be acceptable.

Even if only a few houses were to be put on this sand dune, the risks of inundation and erosion associated with sea level rise and the need to manage them would remain, as would the unacceptable land based flooding of the only road access to the land. The proposal to develop the sand dune would also remain fundamentally inconsistent with policy.

We therefore strongly urge the Minister not to grant a planning permit for this or a lesser scale of residential subdivision of this sand dune.

12.3 Conditions not drafted

It is usual for a panel or an advisory committee even where it is recommending against the grant of a planning permit to include a draft of possible permit conditions in its report to the responsible authority. This is to assist the Council or the Minister in preparing the permit and allows the comments about conditions made by the parties at the hearing to be considered and given effect where appropriate.

We have taken the unusual step of not including a set of recommended conditions in this Report.

Page 106


This is because we have serious reservations that a set of workable conditions can be developed which would satisfactorily accommodate the current absence of the Coastal Management Act approval for the beach steps which we regard as essential if the land is to be developed for housing; and which would provide watertight arrangements for the funding by the Applicant of as yet unknown erosion management works which must be settled in a wider context than just protection of development on the subject site. Other issues, such as consent for filling of the land to create house sites, remain unresolved.

While we have given some thought to how conditions concerning these and other aspects of the development might be drafted, some considerable further time and effort would be involved if the conditions are to be fully developed. It seems to us to be potentially wasteful to spend this time, unless there was to be an intention to grant the permit.

If it were the case that, contrary to our recommendation, it was the Minister’s wish to issue a permit, the Panel would of course consider this matter further if requested to do so and provide a supplement to our Report on conditions.

Page 107


13. Are the current planning controls appropriate?

This section of our Report responds to the term of reference set for the Advisory Committee which is to consider whether the current planning controls are appropriate and what changes if any are required.

Our approach

We have indicated at the outset of this section that we believe that a strategic approach is required when considering the appropriate planning controls for the land.

We think that we should first consider whether there is a sound strategic basis for the current controls and the outcomes that they seek to achieve. This involves an initial consideration of whether the controls were put in place in 2000 with considered strategic intent. This is followed by a consideration of whether the controls are appropriate today in light of current policy. We then consider the question of whether it would be fair to alter the controls in any case.

This approach broadly follows the approach taken in Mr Morris’ arguments for the Applicant.

Following this, we then address what purposes the land might be put to and the statutory controls appropriate to achieve the preferred outcome.

13.1 Are the current controls soundly based?

Mr Morris in his submissions presented the argument that the controls now in place have legitimacy. He argued that: they were validly put in place and remain valid; the controls were introduced following a public process where there was opportunity for public comment;

there is no evidence that the zoning of the land to residential was corrupt; the current planning controls were prepared by professional planners – conceding that they may have been acting under instruction;

the fact that the new format scheme changed some previous control is of no moment as some change was inevitable;

the zoning of the subject land was consistent with the strategic plan approved at the time of the new format scheme and in particular its

Page 108


contemplating that there would be further development beyond the last existing house in Griffiths Street;

the fact that the land is both in a R1Z and an ESO does not undermine the legitimacy of the R1Z; and

subsequent planning processes have reinforced the residential zoning.

We address those arguments in the following section.

13.1.1 Advisory Committee response

Formal exhibition

We agree with Mr Morris’ submissions that the current controls went through a public process and were exhibited as they are in place today. Throughout that public process, there were no submissions or comments made in relation to the rezoning of the subject land from rural to residential and the panel did not comment on the matter. All this is not remarkable.

It does appear to us that the assertions made by Mr Guest that the changed residential zoning went unnoticed during the formal process may indeed be the case, however. It seems to be that it went unnoticed by the Council officers and by the community generally. There are a number of factors which support this view.

To begin, the subject land was and is included on Map 34 of the exhaustive set of 44 maps of the exhibited Moyne Planning Scheme. Map 34 (in hard copy as available at the time of exhibition) was produced at a relatively small scale due to its applying across extensive rural areas. On that map the subject land is located just outside the boundary of the larger scale Map 36 (containing most of urban Port Fairy): it appears as a very small feature on the map and, given the relatively featureless stretch of Griffiths Street and the beach as depicted in this location, is difficult to precisely identify. (Refer to exhibited Zoning Map 34 below – scanned at actual size). Without any specific mention in the documentation around the new format scheme it could have easily been missed by submitters and others.

What is of concern to us is that the explanatory report for the new format scheme makes no mention of the rezoning of this land. Mr Guest advised that indeed there were a further three areas of land around Port Fairy or elsewhere in the Shire which were similarly rezoned without notice at the time of introduction of the new format scheme. They were rezoned to residential zones or similar from agricultural zones or at least zones with less development potential, apparently without strategic basis and without comment (see map attached to letter to Ombudsman of 9 May 2007 from

Page 109


Messrs Marten Syme, John Mullany and Don Stewart – Attachment E provided to Advisory Committee at directions hearing). The three other areas included tens of hectares of land west of the town and another large site at Killarney. The Killarney land has since been back‐zoned to rural purposes.

The absence of inclusion of the change of zoning for this land in the explanatory report is, we believe, an irregularity in the processing of the new format planning scheme. We accept that the rezoning could be seen on the maps if examined ‐ but only if carefully done. Also there were no strategic ‘prompts’ to bring it to anyone’s attention. We think that this would have hindered the proper planning consideration of the matter as part of the public processing of the new format scheme.

The issue of the rezoning and notice is discussed in some detail in the letter to the Ombudsman of 18 December 2007 from the then Acting Chief Executive Officer, Mr Greg Anders, who commenced work with the Council as Director of Planning and Environment in late September 2000. (Document I provided by Mr Syme at the directions hearing).

Mr Anders indicates that when he took up the position there were then only two planners at the Council – neither of whom had been there when the new format scheme was being developed. He further says:

I have personally conveyed my concerns and opinions to the Minister for Planning’s senior advisers, the former Council Chief Executive Officer and to the Council in regard to the inadequate levels of public engagement and consultation during the period of preparing and exhibiting the new planning scheme.

It is my opinion that had the Port Fairy community actually been aware of the proposed zoning changes there would have been many submissions received and the Panel’s final report and recommendations may have been quite different.

The Minister for Planning’s position (received from its regional manger) is that the proposed re‐zoning maps were properly placed on public exhibition and that the process was not ‘ultra vires’.

This is in spite of the fact that the scale of the zoning maps was such that it would have been almost impossible in my opinion for any member of the public to have noticed the proposed changes through a visual inspection. (Our emphasis)

We agree with those views.

Page 110


Figure 2: Part of exhibited Zoning Map 34 - Moyne New Format Planning Scheme

Mr Guest also advised that there was a change in planning personnel at the Council during this period as suggested in Mr Anders’ letter, and it may have been that there was a loss of ‘collective memory’ concerning previous scheme provisions. Also it is not surprising that the new format scheme panel did not mention the matter as the breadth of the task of assessing the new format scheme would have been considerable and the panel would not have examined every detail especially if no one brought it to its attention.

Absence of strategic justification for Planning Scheme controls

In our view the absence of a contemporary strategic justification for the exhibited rezoning is potentially the most concerning factor with respect to the legitimacy of the controls.

As we understand it, when the Victoria Planning Provisions‐based new format schemes were being introduced throughout the State, the new zones were expected to be, at least as a first step in the translation from old to new schemes, a best‐fit match for the old zones. This would have allowed a ‘policy neutral’ change from the old to the new scheme system unless a

Page 111


strategic plan had been prepared to justify changed zoning or other provisions.

The Advisory Committee has been able to identify only limited documentation supporting this approach to the new zones. We referred the parties at the hearing to such documentation as we found. It is noted that in the ‘Guidelines on preparing new format planning schemes’ of December 1996 issued by the Minister for Planning and Local Government, in the section headed ‘Choosing your tools’, the following appears:

Pick your tools from the VPP. The first step is to identify the new zones required to assist in implementing the MSS. In essence, your strategic work – in particular the strategic land‐use framework plan – should establish the type and location of particular zones. A practical approach is to first prepare a ‘best‐fit’ zone translation which can be amended to reflect the land‐use framework plan.

(Our emphasis)

Also in the ‘Report on the New Format Scheme for Moyne Shire of November 1998’, the panel observes that:

The exhibited Planning Scheme is in many instances a translation or ‘best‐fit’ of new zones for the municipality. While there has been some direct translation of controls, the Council has also sought to make some changes. Some of these modifications are significant, such as a reduction in the minimum lot size in the Rural Zone and the rezoning of large areas of land for low density or rural residential purposes. These are matters on which the Panel/Advisory Committee makes comment in this report. (Our emphasis)

It would seem therefore that prior to finalisation of the new scheme when the strategic work was undertaken to apply the new zones and overlays, the subject land should have been strategically assessed as suitable for the new purposes to which it was to be put. No documentation has been put before the Advisory Committee, however, which provides a clear strategic justification for the change from agricultural to residential zoning for the subject site.

With respect to strategic justification for the rezoning, Mr Morris sought to argue that, contrary to the views of the objectors, the new zoning was consistent with the Strategic Framework Plan for Port Fairy which was also exhibited as part of the new format planning scheme. It is now included as part of Council’s Settlement and Housing Local Planning Policy in Clause 22.01 (see Figure 3 below). He suggested that there is consistency because

Page 112


the placement of Connolly Street on the plan is incorrect and the map is at best a ‘mud map’ in his view.

Figure 3: Port Fairy Framework Plan – LPPF

He also noted that a pre‐exhibition version of the Port Fairy Framework Plan identified the ‘edge of urban development’ to be further southward, away from the subject land (Refer Port Fairy Framework Plan – Earlier Version in Figure 4 below).

General location of subject land

Page 113


Figure 4: Port Fairy Framework Plan – earlier (or penultimate?) version

The changes between the pre‐exhibition copy and the exhibition (and still current) copy of this framework plan were noted in a letter from the regional manager of DPCD (then DSE) to Mr Anders at the Council of 9 June 2006 (Exhibit 18) – where the comment was made that the ‘NE coastal ‘Edge of Urban Development’ has been extended.’

There appears to be no material available which would explain why the map was altered. It is our view, however, that even if it were the case that it was intended to match or form the strategic base for the residential zoning as suggested by Mr Morris, it has failed to achieve that purpose.

In our view, even the amended (current) strategic plan conflicts with the zoning map; it identifies the urban boundary to be somewhere near Connolly Street (and possibly even north of that street) but it clearly excludes at least part of the subject land.

General location of subject land

Page 114


Professional preparation of the controls

Mr Morris also argued that as the exhibition copy of the planning scheme was prepared by professional town planning consultants (PPK Environment and Infrastructure Pty Ltd) for the Council this adds to its legitimacy. While ordinarily preparing the statutory documentation for a planning scheme is a very different task from undertaking strategic planning for a municipality, we note from the East Beach Chronology submitted by Mr Guest (Exhibit 24) that the land use strategy for the municipality and the scheme for exhibition were both under preparation by the consultants at about the same time and were to be exhibited jointly. Mr Morris submitted that the consultant planners would likely have resisted employing statutory controls which were inconsistent with the strategic intents, and one would expect that they would either not have done it or done it only while also signalling that they were doing so under protest or instructions.

We are not sure that he is totally correct in this – we have earlier referred to the changes made as between the draft and final versions of the Overview Report of the much later Port Fairy Planning Implementation Strategy. Also we note that the material in Exhibit 24 indicates that the land use strategy was not completed by the consultants by the time the new format scheme was exhibited and approved. If Mr Morris were to be correct in this, however, we would suggest that the falling out between the Council and the consultants over tasks which were part of the brief referred to by Mr Guest (see Exhibit 101) may give a hint of this. We give only a little weight to this argument in light of the uncertainties around what occurred at the time.

Changes under delegation

Another potentially relevant factor is that, in the lead up to exhibition of the new format scheme exhibition, delegated powers were given by Council resolution on 28 October 1997 to the Director of Provider Services of the Council to ‘oversee any further changes to the new planning scheme and supporting documentation which might be required prior to the commencement of exhibition’ (see Exhibit 24). This discussion preceding the resolution said, however ‐ ‘It is anticipated that these changes (if required at all) would be of a minor nature only’. In our view, no legitimacy for the rezoning can be drawn from any change to the zoning made by the Director. Indeed Mr Morris did not rely on this point. The subject land was sufficiently large and the differences between the old and new zonings so radical that if change had been made under delegation, it would have gone beyond the powers intended to be given to the delegate – being to make minor changes only. There is, however, no record of decisions made by the Director.

Page 115


Absence of formal records

Concerning strategic justification for the rezoning, our understanding of this is hampered the absence of relevant minutes for the reference group(s) established in 1997 by the Council to contribute to the preparation of the new format scheme. The only records found, it seems, are those provided by Mr Guest in his chronology of events (Exhibit 24). These are internal officer documents from the Council file generally without comments or attached maps etc sufficient to allow the identification of particular parcels of land. No proper minutes of those groups can be found, we were advised.

Absence of evidence of corruption

Concerning the introduction of the new format scheme and the zoning of the land as residential, Mr Morris further argued that there is no evidence that the zoning of the land as residential was tainted by corruption and it would be legally inappropriate to accept mere suggestions or assertions in this regard.

Mr Morris is correct in this, and we, like the Ombudsman who conducted an enquiry into the zoning of this land under the new format scheme in 2007, are unable to conclude based on evidence available to us that corruption occurred.

All we can say is that that it seems to be the case that there were changes made ‐ apparently late in the piece ‐ in the pre‐exhibition phase of the processing of the new format scheme to the Port Fairy strategic plan (now in the LPPF) which arguably may have been intended to provide a strategic basis for the rezoning of this land to residential under the new format scheme. The changes made, however, do not provide that desired justification as not all of the subject land falls inside the ‘edge of urban development’. It seems also that there was no other strategic basis for the change of zoning that occurred at the time or at least one which was available to the public. This was irregular. Any justification which might then have been available is certainly not available now. This is unusual.

Incompatibility of ESO and Residential 1 Zone

One of the arguments put by Mr Morris was in response to the submission put by Mr Townshend that the existence of the ESO and the policies in relation to environmental matters in the Planning Scheme might seem inconsistent with the zoning. It might be thought that this perhaps indicated some irregularity in the rezoning. Mr Morris argued that, having regard to the way that the VPP are formulated, there is no inconsistency ‘at all’ in having a Residential Zone and an ESO.

Page 116


We agree with Mr Morris in principle that an ESO and a residential zone can legitimately together apply to an area of land. We also agree that under the VPP each control has its own objectives, permit triggers and considerations, and should be considered individually. One control of the Planning Scheme is not to be seen as more fundamental or important than another. This was also Mr Milner’s view.

We would not go so far in this case, however, to say that there is no inconsistency ‘at all’. This is for the reason that the ESO allows as of right dwelling development only where lots are greater than 40 hectares in area: this perhaps implies an expectation of housing density much less than applies normally in the Residential 1 Zone.

Also it is of concern to us that the ESO and planning policies raise considerations which question whether the use of this land is suitable for dwellings not merely whether the form of development is appropriate. In this way it can be said that the zone (where the use of land for a dwelling is as of right) and the overlay are not compatible.

In giving this second reason, we are conscious that the application is not for dwellings per se and these would require later permission. However it is clear that the land is intended to be sold and potentially used for dwellings.

This factor ‐ of the overlay and policies sitting awkwardly with the zoning ‐ does question, we believe, the legitimacy of the rezoning process.

Implications of subsequent planning decisions affecting the land

As part of his argument that the current controls have legitimacy, Mr Morris then referred to the report of the panel considering Amendment C3 to the Moyne Planning Scheme in 2002. The panel was considering the updating of the Urban Design Guidelines for the township which had initially been put in place as part of the new format planning scheme. An update and refinement of the Guidelines had been undertaken since that time in accordance with recommendations made by the new format planning scheme panel and this was the statutory implementation of the Guidelines involving application of new Design and Development Overlays. The Amendment C3 panel supported the response by the Planning Authority to a submission that the area affected by the Guidelines should be extended to ‘Area 14’ ‐ a fringe area which included the whole of the subject site. Mr Morris suggested that the introduction of a DDO that only makes sense in the context of a residential zone is a factor underscoring the legitimacy of the current planning controls.

Page 117


We do not put much store by this factor. Part of the subject site was already included in a former DDO which was to be deleted as a part of that Amendment and it seems unsurprising that a panel would extend a new DDO to the extremity of a zone – when it was suggested that an area or areas at the fringe of the township had been omitted from the new DDOs. The panel made no comment in its report on the subject land per se nor its zoning. It is reasonable to assume that the zoning of the land was taken for granted and the panel gives no indication of considering its propriety.

13.2 Are the controls strategically appropriate now?

Mr Morris advanced a number of arguments in support of the Applicant’s contention that the planning controls in place today are strategically appropriate. In arguing this he said that the zone should be considered together with the ESO as a package. He advised that the Applicant is not saying that the ESO is inappropriate.

His arguments in support of the package of controls were in summary: the package of controls and in particular the zoning is consistent with the clear planning policy to encourage development in settlements and discourage it outside of settlements. This is reflected in the Victorian Coastal Strategy and derives in part from the Coastal Spaces project. Port Fairy is identified in the latter study as one of few places on the Victorian coast west of Cape Otway with moderate capacity for spatial growth;

the land is adjacent to existing urban development; the land can be easily serviced; there is no flora and fauna on the land which would constrain its use for housing;

the elevation of the land is such that houses can be constructed above the flood risk level and Griffiths Street can and should be elevated to service the wider Griffiths Street neighbourhood;

the land is the last parcel of privately owned land north of the township – land further north is in public or communal ownership. The use of this privately owned land if it is not to be developed for housing as proposed is unclear;

there is a need for lots with sea frontage and ‘magnificent views’; in the absence of a defined urban growth boundary, in accordance with Clause 15.08, the extent of settlement is to be defined by the extent of urban zoned land ‐ and the subject land therefore falls within the settlement boundary;

he acknowledged Mr Milner’s criticism that the land was remote from shops and services but this was offset in the tradeoffs of the housing

Page 118


decision by access to the beach as a recreational resource. If Port Fairy is to spatially expand, inevitably new development will be further from the town centre;

the subdivision cannot be rejected on landscape grounds as this is a consideration for the housing application to follow. It is not a necessary outcome that landscape effects will be unacceptable;

the threat of coastal erosion does not make the residential zoning inappropriate – there is a package of controls with the ESO making sure that the zone is appropriate; and

policy statements about development being discouraged or inappropriate on primary (sand) dunes or dune systems need to be read in the context that the dunes in question are within a settlement of moderate growth potential. There is no definition of primary dune in any case and it is ambiguous.


So far as these arguments are concerned, the Advisory Committee makes the following comments.

Landscape effects

We accept that there are constraints upon utilising landscape issues to assess the suitability of the urban zoning – that is upon determining the matter based on any perceived adverse effect of the housing on views from the coast and hinterland. We agree that this is principally a consideration in relation to a future permit application or applications for dwellings.

Nevertheless we were told that some aspects of the future development of housing on the land would be constrained by restrictions on title imposed as part of this subdivision. These restrictions are proposed to prescribe the location of dwellings, their height above the dune ridge and allowable overall height. They might also require certain materials and methods of construction (including construction on piles). This provides some understanding of the nature of future housing.

We accept that the design intents as described to us were worthy ones. We nevertheless have some concerns about the siting and design matters: the permissible height of the dwellings above ground – initially described as natural ground – later became filled ground level. As we have indicated in Section 9.1.2, the extent of filling might be considerable if sea views over the present dune ridge are to be obtained with the increased setback. The dwellings would potentially be very prominent in views from the west;

Page 119


also the dune crest might be eroded (unless prevention measures were taken on the sea side of the dune to stop shoreline recession) exposing the dwellings to views from the beach and water; and

in Section 11.2, we have earlier described our reservations about the adverse effects upon the intended design outcome as described to us by Messrs Biles and Dance as well as others, of the additional setback required for a 0.8 metre sea level rise. The transitional or alternative form of development originally planned appears to be substantially compromised by a considerable reduction of the area suitable for building on many of the lots, with a consequent ‘lining up’ of building envelopes along the access roads. We expect that the costs of fill and accessways may encourage building close to Griffiths Street albeit within the building envelope.

These are substantial problems facing suitable urban development outcomes on this land and recommend against such a residential zoning being appropriate.

Site constraints

We agree that development on the subject land is not constrained by high biodiversity values or an inability to provide physical services. It is also adjacent to existing urban development. We agree also that housing on the land can be elevated above the modelled flood levels. These are locational and land capability factors which favour an urban zoning.

They are not the only relevant factors, however. The access to this land, as well as part of the land itself, is subject to flooding. It may be that in time the road will be elevated to alleviate flooding as suggested but this has not occurred and we were not told that it is planned. Both the roadway and the low lying western parts of the subject land are proposed for inclusion in a Floodway Zone. Filling of the floodplain is not supported by policy. Quite substantial earthworks and considerable filling would be required for future house sites. More than half of the land is at risk of inundation and foreshore recession by rising sea levels under even an optimistic projection. The balance of these site characteristics does not support an urban zoning.

Coherence of controls package

It was suggested that the ESO together with the residential zoning made a suitable package of controls in the circumstances that the land is subject to erosion risk and it cannot be said therefore that the zoning is inappropriate on this basis.

Page 120


As we have previously commented in Section 13.1.1, we do not believe that the elements of this package sit well together. The ESO is indeed an important response to the characteristics of the land but it stops short of making the incompatible zoning acceptable.

Location in relation to settlement

While we agree that the development would not be seen as its own separate urban entity on the coast but as the outer edge of Port Fairy township, it is not possible to rely on the argument that the land is within the urban settlement of Port Fairy and hence consistent with coastal policy supporting nodal development to justify the current planning controls. It can only be identified as within the urban boundary of the township either because, in the absence of a defined boundary, it is in a residential zone; or because it is identified on the strategic framework plan in Clause 22 as being within the edge of the urban area.

In our view, the former argument is circular – because it is in a residential zone (and hence in the urban growth boundary) it should be in a residential zone. The second argument is fallacious in so far as the strategic plan does not clearly indicate the subject land as within the edge of urban development.

Dunes policy

In light of the above, there does not need to be a reading down of the policies against development of coastal dunes.

Housing need

The matter of the need for housing with sea views has already been addressed and rejected in Section 11.1 of our Report.

Urban form

The matter of the relative remoteness of the site from the town centre is addressed in Section 7.2.4 of this Report. We find that this is a negative factor in terms of support for the proposed project. It is also not supportive of an urban zoning for the same reasons.

Private v public land and other futures

The subject land, as Mr Morris submitted, is the last piece of privately owned land north of Port Fairy (assuming that the golf course is public land). This is true at least on the sea side of Griffiths Street. The argument can be advanced therefore that this might be the last urban development north of

Page 121


the township. It is also true that it is difficult to see what the land might be used for if found to be unsuitable for housing.

We do not think these matters offer a sound strategic basis for retaining the land in residential zoning.

The policies which seek to avoid linear urban development along the coast have been earlier quoted. Development of the subject site for housing would clearly run counter to those policies. We believe that a poor precedent would be set – not necessarily for immediately abutting land but for other parts of the coastline. These policies have become even more significant in light of the sea level rise and coastal recession issues of recent times.

We discuss the matter of alternative uses to which the land might be put in Section 13.4 below.

13.3 Equity argument

Mr Morris finally submitted that if we were against him on the earlier arguments about the legitimacy of the zone and that it remained strategically appropriate, it would nevertheless be unfair on his client who bought land with the Residential 1 Zone in place to back zone the land for rural purposes. He noted that back zoning does not attract any compensation to the owner. He also noted that the owners of the subject land had spent considerable sums of money on consultants and assessments. He said that while back zonings are not unknown, there would have to be very unusual circumstances for it to happen. He further submitted that the back zoning might have an adverse effect on confidence in the planning system.


We reject this unfairness argument for the Applicant for a number of reasons.

Caveat emptor

To begin, Marcson bought the land from the Finnigans at a time when the problems with the zoning had been formally aired at the Council and the Council had requested their planning consultants preparing the Port Fairy Implementation Strategy to specifically comment on the subject site and development. Government agencies such as DSE and the Western Coastal Board had already lodged their concerns about the development of the land, including its high vulnerability and the unsustainability of the proposal. Local residents and even internal Council departments had objected. We cannot believe that Marcson would have been unaware of the processing difficulties. At the least we think it is reasonable to expect that the company ‐

Page 122


as a savvy commercial buyer ‐ should have been so aware (caveat emptor). In these respects we were advised that Mr Mark Rowsthorn, who is associated with that company, had had a long association with Port Fairy and had done a number of other developments in the town.

Nor can we accept the assertion by Mr Morris that his client would have thought that the development problems were all resolved. The purchase took place in the year before the consultants who were specifically asked to revisit the zoning and future for this land reported to the Council.

Justifiable back zoning

So far as the argument that back zonings are only done in unusual circumstances is concerned, it is our view that this is just such a special planning case ‐ warranting unusual action.

This site is part of the narrow coastal dune complex separating Belfast Lough from the sea – it is already eroding – and is expected to erode more so under a future sea level rise of 0.8 metre (for which planning must now be done). Even under the Applicant’s optimistic estimates, housing is proposed to be confined to the westernmost half of the land to avoid the area of risk. This produces other problems as lots and house pads move further downslope towards Griffiths Street and into the Moyne River floodplain.

It is clear that the proposed setback alone is not a realistic retreat option for dealing with inundation and shoreline recession on this dune. This is because the setback proposed does not relocate development onto stable higher ground but back downslope on the dunes. Also we note that even further retreat is not an option here as there is an abutting road reserve on the landward side. Moreover that road and the lower parts of the subject land which adjoin it, are both liable to flooding by the Moyne River. Also if the existing or relocated dune is breached during storm surges, sea water would run through the developed areas of the lots and have an unimpeded path to Belfast Lough.

Clearly, therefore, if housing were to be developed on this dune, prevention measures would have to be put in place – on the sea side of the dune crest. No satisfactory arrangements have been identified to arrest shoreline recession, however, and adaptation measures are limited.

In our view this is a site which is clearly not suitable for residential development. While the subject land remains zoned Residential 1, the misleading impression is given that it is suitable for housing.

Page 123


Presumption of permission

We would add that there is a further matter that calls into question the soundness of this fairness argument advanced for the Applicant. It seems to us that the argument advanced relating to Marcson’s moral ‘entitlement’ to retain the residential zoning of the land has the potential to be extended to also say that it would then be unfair not to allow the permit application enabled by that zoning.

This being the case, it would appear that the fairness argument is perhaps underlain by a misconception that owners of residentially‐zoned land are entitled to develop it for residential purposes in all circumstances. As was pointed out at the hearing, zones and overlays contain words to the effect that ‘because a permit can be granted does not imply that a permit should or will be granted (see for example Clause 41). There can be no such presumption of approval of an application. The circumstances of the site, the policy context and the plethora of considerations called up by the zoning and overlays must be considered.

We would also say that this ‘fairness’ or entitlement argument ‐ if extended to the permission as well – is one which runs counter to the argument also advanced on behalf of the Applicant that the ESO and the zoning are not inconsistent and operate as a coherent ‘package’. It was argued that both were equally important with the ESO providing the safeguard of environmental considerations and appropriate outcomes. It is not logically possible to run both arguments.

In our view, therefore, that fairness does not stand in the way of a back zoning of this land.

13.4 What is the future for this land?

It should be said by way of introduction that this is land for which a change of zoning has been considered on a number of occasions in the past: a recommendation with a very high priority was made in the Coastal Action Plan of 2001 to ‘implement planning controls to restrict strip development beyond [further north than] the existing house north of Connolly Street’;

still another back zoning was proposed in a Councillor motion in 2004; also at about that time, the Council sought legal advice from their lawyers about whether the Minister might be asked to back zone the land without notice on the basis that a mistake had been made when it was included in residential zoning in the new format scheme;

Page 124


yet another back zoning was recommended by the planning consultants preparing the Port Fairy Implementation Strategy in their April 2006 draft report to Council;

the Coastal Spaces Study of 2006 supported consideration of a more appropriate zoning; and

yet another recommendation was made in the in the Coastal Spaces Municipal Implementation Toolkit of December 2006.

If the land is now to be back zoned, the question arises as to what zoning should be applied to the land.

13.4.1 Submissions on alternative controls

We would say here that we found the parties’ submissions and evidence to be not particularly helpful in considering this Advisory Committee issue. Their submissions really only went so far as to consider the benefits and disbenefits of the current zoning v the (earlier) rural zoning alternative. There simply was no proper analysis given to us of the strategic land use future for this land and what controls should be applied to achieve the preferred outcome.

When questioned about this issue, Mr Townshend for DSE suggested that his client’s concern was only to ensure that inappropriate development did not occur on the dune and DSE had not really turned its mind to the matter of appropriate land use for the land. He said that in any case DSE’s view was that the current controls are not unsatisfactory in so far as, properly applied, with due weight to the ESO as well as the zoning, the scheme provisions satisfactorily recommend a refusal of this and similar proposals. He conceded nevertheless that if the Advisory Committee did feel that the zoning sat uncomfortably with the ESO and policy that the land might be included in a rural zoning.

Mr Morris for the Applicant commented in response to our questions that there are indeed other options for the land including Rural Residential or Low Density Living. However he stressed the point that the current controls should not be altered.

The individual objectors such as Mr Syme supported rezoning to the current Rural Conservation or Farming Zone.

Page 125


13.4.2 Pertinent characteristics of the land

We have found that the land is currently subject to coastal erosion and would likely be affected by even more severe erosion as a result of climate induced sea level rise. We have found that to undertake the significant earthworks necessary to provide dwelling platforms is not acceptable, and there is an unacceptable level of flooding of the only road giving access to the land. We have also concluded that the long term solutions to managing coastal erosion of the subject site cannot be found by considering the site alone but needs to be developed considering the context of Port Fairy as a whole. The evidence also indicates that the land has Aboriginal heritage values, there is no Crown coastal reserve between the site and the beach and the biodiversity values of the land are not high.

These site characteristics suggest that: conventional residential or other urban development at the sort of density which has been proposed is inappropriate due to the risk to life and property from rising sea levels;

whatever use is made of the land it should not involve unregulated human access up and down the face of the dune or on‐site foraging and trampling of vegetation by farm animals ‐ so as to minimise disturbance of the sand; and

desirably improved management of native vegetation and the Aboriginal heritage site is required.

13.4.3 The future for the land

The ideal outcome

Having regard to both short and long term considerations, we have concluded that ideally this land should be converted to part of the coastal reserve in public ownership.

In the short term it appears to us that the land would make a logical southerly extension to the coastal reserve to the north. Walking trails from the housing to the south could then be extended along the coast to the golf course area and to Reef Point, vegetation and erosion could be better managed as could the Aboriginal heritage site.

It might even be possible to develop, on the northern part of the site, an information centre, from which the attractive sea and inland views might be enjoyed. Such a public facility would, in our view, not be inappropriate on the dunes in the same manner as would housing. Risks to personal safety from rising sea level and storm surges would be significantly reduced if no one was living on the land. The centre might also be closed at times when

Page 126


Griffiths Street was under flood. Additional access to the beach could be provided near the centre consistent with the policies in the Coastal Action Plan.

In the longer term it is possible that the land might offer a means to alleviate flooding for the township.

As part of his submission to the Advisory Committee, Mr Guest for the Shire outlined some of the significant physical, social, and economic issues facing the municipality. They include the vulnerability of substantial areas of Port Fairy to flooding by the Moyne River and aggravation of this problem under rising sea levels. This is a fundamental problem affecting the future of the town. It presents risks to life and property and has the potential to undermine the liveability of areas of the town and the town’s tourist appeal.

There is no easy solution to manage the rising sea level and more severe flooding of the township. Rock walls might be put around the coast to protect properties with beach frontage, but this would be at the expense of the beach itself and landscape values, and the river mouth would of course need to remain open. Building high walls upstream along the river could also destroy the visual qualities of the lower river reaches and the port area with resultant impacts on amenity for residents and tourist visitation. As an alternative flood barriers might be put in place to prevent the entry of sea waters ‐ such as has been done on the Thames in London. This would likely be complex, expensive and may affect the biological regime of the river and lough upstream of the town: the river is brackish as far inland as the bridge at Rosebrook.

As was mentioned at the hearing, one possible solution to the flooding problem might be to put in place infrastructure which would allow the highest flood waters to be syphoned off (possibly using a one way flow system) before they reached the township and diverted to the sea. It would seem that the subject land is in a suitable location for such a project if it was to be contemplated.

We would observe also that if the land was to be acquired for public use, this would give a measure of compensation to Marcson.

The more realistic option

It seems to us, however, that there is a real prospect that public acquisition may not transpire. It is always necessary to identify a public agency willing to become the land owner and manager and to find the funds necessary to effect the public acquisition of any land. We have not tested this matter with likely agencies.

Page 127


It has to be considered also that significant precedence issues arise here if the land was to be publicly acquired given that there are vast tracts of coastal land at risk of inundation and erosion from rising sea levels.

It seems then it may well be that the land will remain in private ownership.

We have identified a limited range of acceptable strategic outcomes under private ownership: allow the use of the land for farming but requiring that agricultural activities must be confined to the lower, flatter slopes adjacent to Griffiths Street, and no house is to be constructed on the land;

the donation or sale of the land to local Aboriginal community – so that they might act as custodians for the land;

allow the land to be privately developed for tourist purposes such as an interpretation centre and/or cafe.

In order to facilitate these outcomes we think the correct statutory approach would be to: include the land in the Rural Conservation Zone of the Planning Scheme; retain the ESO1; retain the DDO21; and include a special provision applying to the land in Clause 52.03 to the effect that notwithstanding the provisions of the Rural Conservation Zone: o no permit can be granted for sand extraction or for Accommodation; o if the land is to be used for Animal keeping, Carnival, Circus, Minor

utility installation or Telecommunications facility, buildings and works and activities must be confined to the lower, flatter land on the site (as defined in the provision or to the satisfaction of the responsible authority);

o the use of land for Restaurant is not subject to the condition that it must be used in conjunction with Agriculture, Rural industry, or Winery;

o any permission granted for a section 2 use (except Restaurant, Interpretation centre and Wind energy facility) must be subject to a condition confining it to the lower, flatter land on the site (as defined in that provision or to the satisfaction of the responsible authority).

We would add that if it were to be the case that transfer of the land to public ownership was to be adopted, and acquisition was not to be effected immediately, the Public Acquisition Overlay could be applied in addition to the above controls.

Page 128


14. Panel and Advisory Committee conclusions and recommendations

14.1 Panel and Advisory Committee conclusions

It is not uncommon, when climate change and sea level rise are issues under discussion or consideration, for someone to remark that the problem ‐ although serious ‐ is some time off. Mr Byrne, for example, in response to a question at the Panel hearing volunteered that – ‘yes‐ we do need to panic [about sea level rise] ‐ but not for another 30 years’.

Such comments reflect the fact that sea level rise and its effects will only gradually take hold – though arguably such comments might merely be an expression of a wistful longing for ‘business as usual’ on the coast ‐ even just for a few more years.

The most severe manifestations of these changes to our coastal environment are indeed some years away. While this is true, responsible authorities and planning authorities must today make decisions about developments and planning arrangements which will remain for decades into the future. Those decisions must be made responsibly taking into account the anticipated long term changes to the physical environment in coastal areas.

The parties involved in the present dispute about the development of this sand dune at Port Fairy took just such a responsible and forward‐looking approach.

There have been myriad uncertainties in undertaking the tasks of assessing the planning permit Application and the planning controls for this land. Having the predicted 0.8 metre sea level rise established by policy has assisted the task enormously by establishing one firm ‘given’ anchoring an otherwise completely fluid decision‐making context.

In making our recommendation on the outcome of the planning permit Application, we are conscious that this decision may well be looked to by others making decisions about development proposals on the coast. We wish to make it quite clear that the recommendation to refuse the permit on this site is heavily influenced by the site’s particular physical characteristics – by its being a narrow strip of sand dunes separating the sea from the river valley. The dunes are in our view already actively eroding. Future inundation and erosion by the sea is expected to increase and to be substantial. The only access route to the land is already subject to flooding by inland waters and is expected to be flooded more severely in future. The

Page 129


site would require substantial reshaping to make it at all suitable for housing development.

There are other reasons given for recommending refusal of the Application including the unsatisfactory nature of the proposed mitigation measures, inconsistency with policy and the absence of other approvals. This group of reasons is likely to have more general application.

We have also concluded that the subject site should be back zoned to Rural Conservation under the Planning Scheme. In our view, the current controls were not soundly based at the time they were introduced and now no longer can be strategically supported.

14.2 Panel recommendation

The Panel recommends that Planning Permit Application PL04/232 under the Moyne Planning Scheme should be refused for the following reasons: On this sand dune ‐ for which there is a clear history of substantial erosion ‐ it would be foolhardy and contrary to orderly planning to allow further residential development.

The only access road for the land is susceptible to flooding by the Moyne River under extreme and even moderate flooding events. This flooding will be exacerbated by sea level rise.

The earthworks required to create suitable house sites are significant and the resultant filling of the floodplain of the Moyne River is undesirable.

The required prior approval for essential aspects of the development under the Coastal Management Act 1995 is not in place.

The proposal is clearly contrary to planning policy and there is no good reason to depart from that policy.

The positive arguments relating to other issues advanced for the Applicant were either not correct or are outweighed by the significant arguments against approval of this proposal.

14.3 Advisory Committee recommendation

The Advisory Committee recommends: The subject land should be back zoned to Rural Conservation Zone The current ESO1 and DDO21 should be retained; and The land should be made subject to a particular provision at Clause 52.03 altering the normal provisions of the Rural Conservation Zone so as to suit site conditions and strategic outcomes.

Page 130


Appendix A: Advisory Committee terms of reference

Page 131


Page 132


Page 133


Appendix B: The Panel/Advisory Committee process

Page 134


Appointment of Panel/Advisory Committee

On the 26 March 2008, acting on the belief that all necessary delegations were in place, a relevant officer of the Department of Planning and Community Development made a decision to appoint the Panel and Advisory Committee pursuant to Sections 97E, 151, 153 and 155 of the Planning and Environment Act 1987, to hear and consider submissions in respect of the Amendment and provide advice to the Minister in relation to the matter of the appropriateness of the current zoning of the land. Some of the delegations were later found not to be in place. The appointments were remade by the Minister on 10 July 2008.

Terms of Reference

The terms of reference for the Advisory Committee function are set out in Appendix A to this Report.

Hearings and inspections

The Panel hearing and Advisory Committee hearing were held jointly.

A directions hearing was held on 9 April 2008 at Port Fairy Yacht Club. The main hearings were held on 14‐17 July 2008 at the same venue, and on 23‐24 and 31 March, and 1‐3 April 2009 at the hearing rooms of Planning Panels Victoria.

The long delay between the 2008 bracket of hearing days and the second bracket in 2009 occurred as a result of adjourning the scheduled August 2008 hearing days to enable submissions to be made at the hearing on the Victorian Coastal Strategy 2008 which was said in July 2008 to be imminent but which was finally released only in December 2008. The dates for reconvening of the hearing were vacated at least twice at the request of the parties.

We inspected the site and surrounding area on 17 July 2008 in company with the parties and again on the following day – this time unaccompanied. On the second visit we walked further northward along the beach than on the previous day, noting the condition of the dunes and beach formation generally. On the second inspection, we then drove even further northwards along Griffiths Street and inspected the dunes and beach immediately south of the Port Fairy golf course.

The Chairman also inspected the condition of the dunes and beach in the vicinity of the public steps immediately to the north of the subject site on 25 October 2008 (when in the area for an unrelated hearing).

Page 135


During the hearing, we reported to the parties all observations made on these inspections which were pertinent to the issues in the proceedings.

It is recorded here that immediately upon the reconvening of the hearing on 23 March 2009 the Panel Chairman advised the parties that her brother – Oliver Moles ‐ had taken up the position of Director of Sustainable Development at the Shire of Moyne in December 2008. His responsibilities extend to planning, sustainability and environment along with five other areas of Council’s duties. No party objected to Ms Moles continuing as a member of the Panel/Advisory Committee.

Submissions and evidence

We have considered all written and oral submissions and all material presented to us in connection with these matters.

We heard the parties listed in the table below.

List of parties to hearing

Party Represented By Moyne Shire Council Mr Russell Guest, Manager, Strategic

Planning Services, Shire of Moyne. Councillors Jim Doukas and Frank Norton also attended on one or more days.

Marcson Pty Ltd Mr Stuart Morris QC, and Mr Nick Tweedie, barrister (2008 only), instructed by Planning and Property Partners, who called the following witnesses: • Ms Ros Hansen, town planner • Mr Tim Biles, town planner • Mr Neil Craigie, services engineer • Mr Gerry Byrne, costal processes

engineer • Dr Kerry Black, developer of off-shore

reefs • Messrs Chris Dance and Lindsay

Fraser, landscape designers • Mr Mark Gratwick, architect, Mr Paul Crowe, surveyor and Mr Mark Rowsthorn, the Applicant, also attended on one or more days.

Page 136


Party Represented By Department of Sustainability and Environment

Mr Chris Townshend, initially barrister and later SC, instructed by Maddocks, lawyers, who called the following witnesses: • Mr James Carley, coastal processes

engineer • Mr Rob Milner, town planner. Messrs Nick Wynn and Ross Martin also attended on one or more days

Department of Planning and Community Development

Mr Mark Gregory, Mr Steve Myers and/or Mr Simon Haber (on various days)

Glenelg Hopkins Catchment Management Authority

Mr Matt Hayes (and Mr Kevin Wood – directions hearing only)

Western Coastal Board Mr Neil Longmore or Mr Steve Blackley Mr Marten Syme and Mrs Angela Syme Mr Marten Syme (OAM at time of writing of

this Report) Mrs Angela Syme was also in attendance for much of the hearing.

South Beach Wetlands and Landcare Group

Mr Don Stewart

Mr John Mullany Mr Guenter Herrmann Mr John Mullany (for some of the

proceeding) Mr James Pevitt

In addition to the above parties to the hearing, the Panel has considered the written objections or responses from Referral Authorities in the table below which were also received in relation to the Application in its various iterations. A convenient summary of the objections was provided by Mark Gregory of the Department of Planning and Community Development (Exhibit 26). The issues raised in the written objections were all directly or indirectly addressed at the Panel hearing:

Other objections and referral responses

Submitter Organisation (if any) Jeremy Clark Framlingham Aboriginal Trust (Note later

letter of 4 July 2008 objects: Exhibit 37). Anne Batchelder John Young Francis Gleeson W R Stewart

Page 137


Submitter Organisation (if any) P Buchanan A Homewood H Crosier R and H Towler J Robb J and M Rahilly J Honan P McDonald P Baker L Buforden, J Fish, A Kelly, S Kelly , A Wettenhall, J Pickle, J Graham, S Adamson, D and K Adamson, F Howe

EPA CFA Wannon Water Telstra Powercor AAV

Further directions and material received after the hearing

At the close of the hearing on 3 April 2009, we gave directions in relation to the supply of further material.

It is to be noted that requested revised material by Messrs Byrne, Carley, Hayes and Craigie was not submitted to the Panel and served on other parties until 30 April 2009. The written version of Mr Morris’ closing submissions was received only on 8 May 2009.

Page 138


Appendix C: List of hearing exhibits

Page 139


DOCUMENT

NUMBER DATE

TABLED DESCRIPTION PRESENTED BY

1 14/7/2008 Griffith Street, Port Fairy Site / Layout Plan [A1 sized print of Drawing TP01 Revision G] (Mark J Gratwick, 22 August 2007) * Note: Superseded by Rev H

Applicant

2 14/7/2008 5 Plans of Zoning, Overlays and Title Boundaries for the subject site and surrounds

Moyne Shire Council

3 14/7/2008 DSE Reference Folder DSE

4 14/7/2008 Folder with Moyne Council Submission and Attachments plus photos of Eastern Beach taken 30 June – 1 July 2008 (taken by Port Fairy resident)

Moyne Shire Council

5A 14/7/2008 Terrain Model for Proposed Subdivision at Griffith Street, Port Fairy (Mark J Gratwick, 11 July 2008)

Applicant

5B 14/7/2008 Memo to Mark Gratwick – Amendment to the Terrain Model ( EarthTech, 13 July 2008)

Applicant

6 14/7/2008 Port Fairy Subdivision - Opening submission on behalf of Marcson Pty Ltd

Applicant

7A 14/7/2008 East Beach Landfill Investigation (ENSR, 27 March 2008)

Applicant

7B 14/7/2008 Site Layout Plan – Landfill Investigation Former Port Fairy Tip, East Beach (ENSR, 17 March 2008)

ELCORock Details (Geofabrics, 28 August 2006)

ELCORock Case Study – North Aspendale Foreshore Protection (Geofabrics, 2005)

Applicant

8 14/7/2008 Folder with DPCD Submission and Attachments

DPCD

9 14/7/2008 Summary of Objections – Planning Permit Application 04/232 429 Griffiths Street Port Fairy – 35 Lots (DPCD, October 2005)

DPCD

10 15/7/2008 Subdivision Building Envelope Set-out Plan (Mark J Gratwick, 11 July 2008) * Note: Superseded by Rev H

Applicant

11 15/7/2008 Submission (Western Coastal Board, 15 July 2008)

Western Coastal Board

12 15/7/2008 Submission (J Pevitt, undated) including photographs and copy of letter from James Pevitt to the Minister for Planning dated 11 February 2008

James Pevitt

13 15/7/2008 Submission (M Syme, 8 July 2008), including attachments and photos on CD

Marten Syme

Page 140


DOCUMENT NUMBER

DATE TABLED

DESCRIPTION PRESENTED BY

14 16/7/2008 Port Fairy Subdivision, Memorandum Concerning Planning Scheme Requirements (Stuart Morris and Nick Tweedie, 16 July 2008)

Applicant

15 16/7/2008 Extracts from the Moyne Planning Scheme – Clauses 15, 22.01, 32.01, 43.02, 56, 62, 65

DSE

16 16/7/2008 Coastal Management Act 1995 DSE

17 17/7/2008 Submission for South Beach Wetlands Landcare Group (D Stewart, undated)

Don Stewart

18 17/7/2008 Memo from Kim McGough - DSE to Greg Anders - Moyne Shire Council re Eastern Beach – showing 2 versions of MSS Framework Plan (DSE, 9 September 2006)

Applicant

19 17/7/2008 Climate Change and Natural Resource Management Scoping Study (SKM, 16 June 2005)

Moyne Shire Council

20 16/7/2008 228 Griffiths Street, Port Fairy - Planning Expert Witness Statement (R Hansen – Hansen Partnership, June 2008)

Applicant

21 17/7/2008 228 Griffiths Street, Eastern Beach, Port Fairy Planning Expert Evidence Report (R Milner – Coomes Consulting, June 2008)

DSE

22 17/7/ 2008 228 Griffiths Street, Port Fairy – Planning & Urban Design Evidence (Tim Biles, June 2008)

Applicant

23 17/7/2008 Photo of Digby Bros from ‘The State of Common Life’ - a book of photographs of south-west Victoria (Richard Crawley, 1999)

Don Stewart

24 23/3/2009 East Beach Chronology (Moyne Shire Council, undated)

Moyne Shire Council

25 23/3/2009 Directions for 228 Griffiths Street, Port Fairy - Erosion Management Measures (DSE 29 September 2008)

DSE

26 23/3/2009 Summary of Objections – Planning Permit Application 04/232 429 Griffiths Street Port Fairy – 35 Lots. Update of Exhibit 9 (DPCD, 27 October 2005)

DPCD

27 23/3/2009 Draft Conditions of Approval for PL04/232 (DPCD, 13 August 2008)

DPCD

28A 23/3/2009 Statutory Declaration of the Solicitor acting for T E and W H Digby, former owners of the estate (BR Leishman – Tait Leishman Taylor, 20 March 2009)

Applicant

28B 23/3/2009 Will of T E Digby (Conlan & Leishman Lawyers, 9 September 2002)

Applicant

28C 23/3/2009 Will of W H Digby (Conlan & Leishman Lawyers, 13 November 2002)

Applicant

Page 141


DOCUMENT NUMBER

DATE TABLED


29 23/3/2009 Site / Layout Plan TP01 Revision H - with 0.8m sea level rise setback (Mark J Gratwick, 2 March 2009)

Applicant

30 23/3/2009 Further submission (G Herrmann, undated) Guenter Herrmann

31 23/3/2009 Further submission (J Mullany, undated) John Mullany

32 23/3/2009 Further submission (M Hayes of GHCMA, 23 March 2009)

32A Port Fairy Flood Study

GHCMA

33 23/3/2009 Neil M Craigie Pty Ltd Water Management Consultants - Witness Report for PL04/232 (N M Craigie, undated)

Applicant

34 23/3/2009 Addendum to Neil M Craigie Pty Ltd Witness Report (N M Craigie, 16 March 2009)

Applicant

35 23/3/2009 Landscape Design Concept - Witness Statement (Chris Dance and Lindsay Fraser, June 2008)

Applicant

36 23/3/2009 Protection of the Dune Landscape (Chris Dance and Lindsay Fraser, 9 September 2008)

Applicant

37 24/3/2009 Letter of objection to Minister for Planning (Framlingham Aboriginal Trust, 4 July 2008)

Panel

38 24/3/2009 The University of NSW – Water Research Laboratory - Expert Witness Report regarding Coastal Processes and Hazards for Proposed Subdivision at 228 Griffiths, Street, East Beach, Port Fairy (JT Carley, June 2008)

DSE

39 29/3/2009 Griffith Street, Port Fairy - Statement of Evidence (Dr Carter, 30 June 2008)

Applicant

40 31/3/2009 Traffic & Parking Assessment – Proposed Residential Development – 228 Griffith Street, Port Fairy (EarthTech, 27 June 2008)

Applicant

41 31/3/2009 Infrastructure & Services Report – 228 Griffith Street, Port Fairy (EarthTech, 27 June 2008)

Applicant

42 31/3/2009 Draft Coastal Study of East Beach, Port Fairy (WBM, 28 June 1996)

Applicant

43 31/3/2009 Port Fairy Shoreline Stability Study (Coastal Engineering Solutions, July 2006)

Applicant

44 31/3/2009 Memo from Dean Patterson - WBM to Greg Anders – Moyne Shire Council re Port Fairy Shoreline Stability Study (WBM, 28 August 2006)

Applicant

45 31/3/2009 Port Fairy Shoreline Stability Study - Supplementary Information (Coastal Engineering Solutions, October 2006)

Applicant

Page 142


DOCUMENT NUMBER

DATE TABLED


46 31/3/2009 East Beach Port Fairy – Comparative Review of Coastal Process Studies (WBM, 23 November 2006)

Applicant

47 31/3/2009 Port Fairy Shoreline Stability Study - Supplementary Report (Coastal Engineering Solutions, 30 October 2007)

Applicant

47A 31/3/2009 Port Fairy Shoreline Stability Study - Supplementary Report (Coastal Engineering Solutions, 19 June 2007)

Applicant

48 31/3/2009 Port Fairy East Beach Coastal Erosion Engineering and Feasibility Study (BMT WBM, August 2007)

49 31/3/2009 Port Fairy Shoreline Stability Study - Supplementary Report No. 2 (Coastal Engineering Solutions, 31 October 2007)

Applicant

50 31/3/2009 Griffiths Street, Port Fairy – Geomorphology & Coastal Processes in Relation to a Proposed Subdivision (N Rosengren – Environmental GeoSurveys Pty Ltd, July 2005)

Applicant

51 31/3/2009 Interim Guidelines for Floodplain Development in and Around Port Fairy (Glenelg Hopkins CMA, 25 October 2007)

CMA / Moyne Shire Council

52 31/3/2009 Photographs of East Beach, Port Fairy (M Syme, 29 March 2009)

M Syme

53 31/3/2009 Photographs of Port Fairy Golf Course (M Syme, 27 March 2009)

M Syme

54 31/3/2009 Addendum 1 to James Carley Witness Statement Report [Exhibit 38] (James Carley, 29 March 2009)

DSE

55 31/3/2009 Addendum 2 to James Carley Witness Statement Report [Exhibit 38] (James Carley, 30 March 2009)

DSE

56 31/3/2009 Profile Workings (James Carley, 30 March 2009)

DSE

57 31/3/2009 Expert Witness Statement - Coastal Processes and Hazards for Proposed Subdivision at 228 Griffiths Street, East Beach, Port Fairy [Powerpoint Presentation] (James Carley, undated)

DSE

58 31/3/2009 Site Hazard Lines Overlay on Proposed Subdivision Site Layout/Plan (WRL, 5 March 2009)

DSE

59 31/3/2009 Copy of part of AUS 141 Bathymetric Chart (Commonwealth, 2001)

Applicant

60 31/3/2009 Port Fairy Bay Beach & Hydrographic Survey (Coastal Engineering Solutions, 28 April 2006)

Applicant

Page 143


DOCUMENT NUMBER

DATE TABLED


61 31/3/2009 Modelling Coastal Processes and Hazards to Assess Sea Level Rise Impacts for Integration into a Planning Scheme [Paper to Institute of Public Works Engineers] (J Carley et al, 4 August 2008)

Applicant

62 31/3/2009 Table 13.2 - Estimated Bruun Rule Profile Gradients [Extract from Final Draft Technical Report to Clarence City Council] (J Carley – WRL 11 November 2008)

Applicant

63 31/3/2009 Sea-level Rise and Shoreline Retreat: Time to Abandon the Bruun Rule [Paper for Global and Planetary Change] (Cooper & Pilkey, 2004)

Applicant

64 31/3/2009 Chapter 7 – Climate Change Impacts on Clarence Coastal Areas (SGS Economics and Planning, December 08)

Applicant

65 31/3/2009 The Bruun Rule of Erosion by Sea Level Rise: A Discussion on Large Scale Two and Three Dimensional Usage [Paper for Journal of Coastal Research] (Per Bruun, Vol. No. 4 Autumn, 1988)

Applicant

66 31/3/2009 Port Fairy Shoreline Stability - Statement of Expert Witness (P Riedel and G Byrne - CES, undated)

Applicant

67 31/3/2009 Addendum to Witness Statement [Exhibit 66] (G Byrne, 19 March 2009)

Applicant

68 31/3/2009 Coastal Process Studies [Powerpoint Presentation] (G Byrne and P Riedel - CES, undated)

Applicant

69 1/4/2009 Review: Proposed Development at East Beach Port Fairy [Letter & Report] (BMT WBM, 26 May 2008)

Applicant

70 1/4/2009 Proposed Development of Land in Griffiths St Port Fairy: Beach Erosion Issues - Statement of Evidence (Dr K Black, March 2009)

Applicant

71 1/4/2009 Port Fairy: East Beach – Witness Statement [Powerpoint Presentation] (Dr K Black, undated)

Applicant

72 1/4/2009 Aerial Photograph of Salient at Blairgowrie Marina (Google Maps, undated)

Applicant

73 1/4/2009 Chapter 1 & Figure III-3-32 - US Army Coastal Engineering Manual (J Pope - US Army Engineer Research and Development Centre, 1 June 2006)

Applicant

74 2/4/2009 Coastal Sensitivity to Sea Level Rise – Appendix 2 – Basic Approaches for Shoreline Change [Extract pages 755 - 771] (USGS, 15 January 2009)

Applicant

Page 144


DOCUMENT NUMBER

DATE TABLED


75 2/4/2009 Subdivision Building Envelope Set-out Plan (Mark J Gratwick, 11 July 2008) * Exhibit 10 - Revision A

Applicant

76 2/4/2009 Letter to Mark Naughton advising on sinking fund arrangements (G Morley – Consulting Actuaries, 1 April 2009)

Applicant

77 2/4/2009 Affidavit of Paul Crowe – Licensed Surveyor regarding DSE involvement since 2003 (PD Crowe, 20 March 2009)

Applicant

78 2/4/2009 DPCD Draft Conditions of Approval for PL04/232 – Highlighting Applicant’s Changes [Exhibit 27] (DPCD, 30 March 2009)

Applicant

79 2/4/2009 228 Griffiths Street Port Fairy - Suggested DDO Translation (undated)

Applicant

80 2/4/2009 Moyne Shire Council - Submission to the Panel and Advisory Committee for PL04/232 - 228 Griffiths Street (Moyne Shire Council, undated)

Moyne Shire Council

81 2/4/2009 Supplementary Submission by the DPCD (M Gregory – DPCD, 23 March 2009)

DPCD

82 2/4/2009 228 Griffiths Street, Port Fairy - PL04/232 - Submission on behalf of DSE (C Townshend, 17 July 2008)

DSE

83 2/4/2009 SPPF – Clause 15 DSE

84 2/4/2009 Victorian Coastal Strategy 2008 (Victorian Coastal Council, 2008)

DSE

85 2/4/2009 Moyne Planning Scheme – Environmental Significance Overlay Maps 34 and 35 (undated)

DSE

86 2/4/2009 Various documents regarding Amendment C3 to the Moyne Planning Scheme

Applicant

87A 3/4/2009 Letter from Greg Anders – Moyne Shire Council to Nick Wynn – DSE regarding sand dunes at Griffiths Street (10 May 2007)

87B 3/4/2009 Letter of reply from Nick Wynn – DSE to Greg Anders – Moyne City Council regarding sand dunes at Griffiths Street (17 May 2007)

88 3/4/2009 Section 1C - Extract from Environment Protection Act 1970

Applicant

89 3/4/2009 Summary Report for Policymakers - Intergovernmental Panel on Climate Change (Working Group, 2007)

Applicant

90 3/4/2009 Various Aerial Photographs Applicant

Page 145


DOCUMENT NUMBER

DATE TABLED


91 3/4/2009 Port Fairy Planning Implementation Strategy Overview Report – Moyne Shire Council (Parsons Brinckerhoff, April 2006) - Final version

Moyne Shire Council

92 3/4/2009 Stockland Waterways and Residential Development, Point Lonsdale – Amendment C150 to the Greater Geelong Planning Scheme & PP673/2007 - Panel Report (Planning Panels Victoria, October 2008)

Applicant

93 3/4/2009 NSW Draft Sea Level Rise Policy Statement (DECC, February 2009)

Applicant

94 3/4/2009 Definition of ‘Primary Dune’ DSE

95A 3/4/2009 VPP and all Victorian Planning Scheme Amendment VC32 (DSE, 23 December 2004)

DSE

95B 3/4/2009 VPP and all Victorian Planning Scheme Amendment VC42 (DSE, 9 October 2006)

DSE

95C 3/4/2009 VPP and all Victorian Planning Scheme Amendment VC52 (DPCD, 18 December 2008)

DSE

96 3/4/2009 Extracts from landscape setting types, Coastal Spaces Report

DSE

97 3/4/2009 Extracts from Victorian Coastal Strategy 1997

DSE

98 3/4/2009 Supplementary Submission for DPCD [Closing Statement] (M Gregory – DPCD, 3 April 2009)

DPCD

99 3/4/2009 Conditions for Permit Application PL/232 – Without Prejudice (CMA, undated)

CMA

100 3/4/2009 Extracts from Planning Scheme Maps during conversion to New Format Planning Scheme

Moyne Shire Council

101 3/4/2009 Bundle of correspondence from 1997- 1998 relating to payment to PPK for preparation of New Format Planning Scheme

Moyne Shire Council

Page 146


Appendix D: Proposed plans of subdivision

Page 147


Amended Application plan (TP01 Revision G). Includes setback for 0.48 metre sea level rise – shown in green.

Page 148


Plan TP01 Revision H showing revised setback for 0.8 m sea level rise – Applicant’s calculations –shown in pale blue.

Page 149


Plan showing dimensions of revised building envelopes for Plan TP01 Revision H.

Page 150


Appendix E Flooding plans

Page 151


1:100 year flooding plan prepared by Catchment Management Authority (approximate 3.28 metres AHD shown).

Page 152


1 in 100 year flood line (at 2.56 metres AHD) prepared by Applicant.

Documents

East Beach, Port Fairy Permit Call-in Panel Report · The land forms part of the sand dune system between the beach and the Moyne River floodplain. The subject land ranges in height