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Supreme Court of Victoria
2021-04-15
Richards J
Original judgment source is linked above.
LAND VALUATION AND COMPENSATION - Claim for compensation for farm land compulsorily acquired for Drysdale Bypass - Land acquired in 2018 - Bypass first proposed in 1975 - Requirement to disregard any decrease in the market value of the land acquired arising from the proposal - Dispute as to whether subject land would have been zoned for residential use but for the Bypass proposal - Separate questions as to hypothetical zoning of subject land - Approach to determining separate questions - Significance of planning history and expert planning evidence - Opinions of respondent's planning experts preferred - Land Acquisition and Compensation Act 1986 (Vic), s 43(1).
1 In 2018, the Roads Corporation (the Authority)[1] compulsorily acquired farm land owned by Patrick and Wendy Crowe on the eastern side of Drysdale, on the Bellarine Peninsula, for the construction of the Drysdale Bypass. On 8 January 2018, it acquired all of the property at 40-50 Drakes Road (Drakes land), which was owned by Mr Crowe, and on 19 April 2018 it acquired part of the property at 117-139 Murradoc Road (Murradoc land), which was owned by Mr and Mrs Crowe. Mr and Mrs Crowe have claimed compensation for the land that was acquired, in accordance with the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act). The amount of compensation to which they are entitled is in dispute, and is the subject of these two proceedings.
2 The dispute arises from the fact that the Drysdale Bypass was first proposed as early as 1975, and has been a feature of strategic planning for the area since then. Section 43(1)(a) of the LAC Act requires any decrease in the market value of the land arising from the proposal to carry out the purpose for which the land was acquired to be disregarded in assessing compensation. Mr and Mrs Crowe contend that, but for the Bypass proposal, their land would have been zoned for residential use by 2018, and its market value should be assessed on the basis that its highest and best use was residential. The Authority maintains that the Crowes' land would have remained farm land, and should be valued on that basis.
3 On 15 July 2020, I ordered the hearing and determination of the following separate questions before trial:
(1) For the purposes of assessing market value of the land in the 'before' situation under the Land Acquisition and Compensation Act 1986 (Vic), what would have been the zoning of the land or any part of it at the acquisition date?
(2) If the answer to question 1 is that the land, or any part of it, would not have been zoned for residential use at the acquisition date:
(a) What were the prospects of the land, or such part of it, being rezoned for such use at any time after the acquisition date?
(b) If there was any such prospect of the land being rezoned for residential use, when would such rezoning be anticipated to occur?
4 For the reasons that follow, I have concluded that those questions should be answered as follows:
(1) Both the Drakes land and the Murradoc land would have been in the Farming Zone at the date of acquisition.
(2) There was no prospect of either the Drakes land or the Murradoc land being rezoned for residential use.
5 The measure of compensation to be paid to Mr and Mrs Crowe is to be assessed in accordance with Part 4 of the LAC Act. The primary matter to which regard must be had in assessing compensation is the market value of their interest in the land acquired on the date of acquisition.[2] The market value of the land is to be determined having regard to the highest and best use to which the land might reasonably be expected to be put at that time, being the most advantageous use of the land having regard to planning and all other factors affecting its potential.[3]
6 Section 43(1) of the LAC Act provides that certain matters must be disregarded in assessing compensation, relevantly:
In assessing compensation, the following matters must be disregarded -
(a) any increase or decrease in the market value of the interest in land which is acquired arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired;
...
(d) in a case where the land in which the acquired interest subsists is reserved for a public purpose in a planning instrument, any restrictions upon the use or development of that land which are imposed by, or are a consequence of, the reservation;
...
This requires that market value be assessed 'by reference to hypothetical assumptions which require the effects of the ... proposal to carry out the purpose for which the land was acquired to be disregarded'.[4]
... involves peeling back [more than 40] years of planning history and re-imagining the physical development of the subject land. The task is both radical and uncertain.
8 In this case, s 43(1)(a) requires me to disregard any increase or decrease in market value of the Drakes land and the Murradoc land 'arising from' the proposal to build the Drysdale Bypass. Since s 43(1)(a) does not specify any particular form of causal connection, the words 'arising from' are to be given their ordinary, broad meaning and 'commonsense notions of causation must be applied'.[7]
9 There was some debate between the parties as to whether s 43(1)(a) permits the Court to disregard events that have in fact occurred, or vice versa. That is not a question to be answered in the abstract. As Osborn J observed in Streetworks Pty Ltd v Linking Melbourne Authority:[8]
... the words of the statute are not to be subjected to a judicial gloss. It was submitted on behalf of the authority that s 43(1)(a) does not enable the Court to deem to have occurred events which have not in fact occurred. Whilst this might be the effect of the proper application of the causal requirement postulated by the statute in a particular fact situation, I do not accept that the general words "arising from" can be artificially limited in this way. What s 43(1)(a) requires to be disregarded is a consequence with respect to value, not a class of circumstances bearing on value. The question which the provision raises is whether such a consequence has arisen from the implementation of or proposal to carry out the relevant purpose.
10 The fact-finding exercise in this case is informed by two categories of evidence: evidence of the relevant planning history, and expert evidence.
11 The planning history of Drysdale and its immediate surrounds, the Bellarine Peninsula, and Greater Geelong can be established from the wealth of strategic planning documentation available. These documents are good evidence of how Drysdale has in fact developed, and leave no room for doubt that its development has been influenced by the proposed Bypass. For that reason, the strategic planning documents need to be treated with some care. They may still be of indirect assistance in my fact-finding, for example:[9]
(a) They may contain factual material which is relevant to the underlying land use planning of the area. In particular, such documentation may assist in the identification of inherent characteristics of the land and its context.
(b) They may demonstrate by analogy a probable conclusion to a particular developmental or planning issue affecting the claimant's land despite the context in which they were formulated.
(c) They may be expressed in terms which permit relevant strategic planning principles to be identified despite the framework in which they were formulated.
12 The strategic planning documents also provide the basis for the opinions of the three town planning experts as to how Drysdale would have developed in the absence of the Bypass proposal, and a framework within which to evaluate those opinions. I am bound to rely on expert evidence for the determination of the separate questions,[10] rather than forming my own inexpert opinion based on the planning history.
13 There are two further matters to note about the approach to determining the separate questions. The first is that neither party bears a legal onus of proof - the question of what the zoning of the Drakes land and the Murradoc land would have been in the absence of the Bypass proposal is to be determined based on all of the evidence, in particular the expert evidence.[11]
14 The second matter to bear in mind is that Mr and Mrs Crowe are the dispossessed owners of the land acquired by the Authority and that, all other things being equal, the proper approach is to lean in their favour.[12] That said, s 140 of the Evidence Act 2008 (Vic) provides that, in a civil proceeding such as this one, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. While I may resolve any doubt or obscurity in the evidence in favour of Mr and Mrs Crowe, ultimately the separate questions must be determined on the civil standard of proof.
15 The Drakes land is a parcel of 4.054 hectares, to the south of Drakes Road. At the time it was acquired by the Authority, almost all of the Drakes land was in the Farming Zone. A small part of the land in the north-west corner was located in the Rural Living Zone.
16 The Murradoc land is a larger parcel, with a total area of 9.677 hectares. It is located to the north of Murradoc Road, and its northern boundary abuts the Drakes land. The whole of the Murradoc land was in the Farming Zone at the date of acquisition.
17 Both the Drakes land and the Murradoc land had at all relevant times been used for farming purposes, in particular for grazing animals.
18 Both parcels of land are located on the eastern side of the town of Drysdale. Figure 1 shows their location relative to the town centre - a roundabout at the junction of Murradoc Road, Collins Street, Clifton Springs Road, High Street, and Princess Street.
Figure 1: Location of Drakes land and Murradoc land marked on Melway map, provided in the report of Brendan Rogers dated 27 March 2018.
19 Figure 2 is a map of a wider area of Drysdale and Clifton Springs, with the town centre, the Jetty Road growth area to the west, and the civic and school precinct to the south all marked. The pink dotted line is the route of what is now the Drysdale Bypass, intersecting the Drakes land and the Murradoc land in the north-eastern corner of the map.
Figure 2: Melway map of the Drysdale township, provided in the report of Sophie Jordan dated 30 March 2018.
20 Figure 3 is a map showing the zoning of land around Drysdale in the Greater Geelong Planning Scheme. A Public Acquisition Overlay (PAO) is in place along the route of the Bypass, to the south and east of the town. The land to the east of the Bypass is in the Farming Zone. The land between the Bypass and the town centre is zoned, variously, Rural Living, Commercial 2, Farming, Low Density Residential, and General Residential.
Figure 3: Map of existing planning scheme zonings, provided in the report of Andrew Clarke dated November 2016.
21 Drysdale is located on the Bellarine Peninsula, about 20 kilometres east of Geelong. Together with Clifton Springs immediately to the north, it is now a town of about 13,000 residents. The town was first settled in the 1850s, and was formally named Drysdale in 1872, after Anne Drysdale, one of its early settlers.
22 The planning history of Drysdale begins with an Interim Development Order made by the Shire of Bellarine in 1960, which had commenced preparing a planning scheme under the Town and Country Planning Act 1958 (Vic). The order simply prohibited any new use or development of land except in accordance with a permit issued by the Shire.
23 In 1974, the Geelong Regional Planning Authority published its Rural Area Planning Policy, designed to achieve several goals including:
The principles that informed the development of the policy included:
24 The zoning map in the Rural Area Planning Policy showed the area between Jetty Road and Princess Street as Rural (Committed Urban). It designated land to the west of Jetty Road and to the east of Princess Street as Rural (General Farming). This zone was described in the policy as follows:
Land included in this zone generally comprises areas which are used for a variety of agricultural pursuits, such as pastoral activities, cropping and other forms of farming. The zone covers those areas which are suitable for continuation of general farming and which are not considered necessary (within the foreseeable future) for urban purposes. It is intended that this land would not be subdivided into small allotments and allotment sizes have been set at a level to discourage speculative subdivision and subsequent pressures for further urban development.
The minimum allotment size in the Rural (General Farming) zone was 75 hectares.
25 The Rural Area Planning Policy required a number of matters to be considered in determining an application to subdivide land:
Because of the importance of conserving the character of the rural sections of the Region, the whole of the land included in the rural zones listed are hereby specified as being of natural beauty, interest and importance. In [determining] whether or not permission to subdivide such land shall be granted and if permission is to be granted what condition or conditions should be imposed, the Authority shall have regard to
(i) the existing use and possible future development of such land and of contiguous or adjacent lands;
(ii) the orderly and proper planning of the zone;
(iii) the amenity of the neighbourhood;
(iv) the effect of development of the land upon the use or development of other land (whether contiguous or adjacent or not) which has a common means of natural or artificial drainage;
(v) the area and dimensions of each allotment comprised in the subdivision and its suitability for the proposed use;
(vi) the need for preserving the natural environment and preventing erosion;
(vii) the advisability or otherwise of retaining native vegetation within specified distances of water courses, roads and property boundaries;
(viii) where the land to be subdivided is in a Rural (Residential) Zone, the provision of services of water, drainage, electricity and roads.
26 The Rural Area Planning Policy noted the existence of several other Planning Policy Statements affecting the Geelong region, including Planning Policy No. 5 (Highway Areas):
1975 - Geelong Regional Interim Development Order
27 A more detailed Geelong Regional Interim Development Order was made by the Geelong Regional Planning Authority in December 1975, under the Town and Country Planning Act 1961 (Vic). Again, land could only be developed if permitted by or pursuant to the order. In determining whether or not to grant a permit, the responsible authority was required to consider:
(a) the sufficiency or otherwise of the area of the land proposed or intended to be used for the purpose for which the permit is sought;
(b) the orderly and proper planning of the land to which this Order applies or to any portion thereof;
(c) the preservation of the amenity of the neighbourhood; and
(d) the primary purpose for which the land is zoned.
28 The maps that formed part of the 1975 Geelong Regional Planning Scheme show a proposed road around the south and east of Drysdale - the future Drysdale Bypass. To the east of the proposed road, the land was zoned General Farming. A mixture of zones applied between Princess Street and the proposed road, including General Farming, Reserved Industrial, and Reserved Residential.
29 In September 1980, the Shire of Bellarine, the Geelong Regional Commission and the Country Roads Board published the Drysdale By-pass Study - Planning Implications Report, prepared by C.L.G. Fadgyas. The introduction explained the context of the report:
A proposed road reservation to provide for a by-pass road around Drysdale was first exhibited as part of the Geelong Regional Planning Scheme in 1975. A Steering Committee comprising representatives of the Country Roads Board, Shire of Bellarine and the Geelong Regional Commission, was subsequently established early in 1979 to determine and locate in detail an appropriate by-pass road for Drysdale. The need for a by-pass reservation has been documented in the "Drysdale By-Pass Study - Needs Report" which predicts future weekday and recreational traffic growths on the Geelong-Portarlington Road and Drysdale - St. Leonards Road. This report concludes that a major improvement to the Geelong - Portarlington Road at Drysdale will be required in the future and that the provision of a duplicated roadway along the existing alignment through the township will incur considerable disbenefits to the local residents. A by-pass road around Drysdale is therefore considered to be a desirable long term solution.
The Steering Committee has defined an investigation corridor around the eastern side of Drysdale and alternative routes within the corridor are being assessed. The purpose of this report is to assess the town planning implications of the alternative by-pass locations having particular regard to the Structure Plan which is being prepared by the Shire of Bellarine and the Geelong Regional Commission to guide future development in the area.
30 Under the heading 'Existing Development' is a snapshot of Drysdale and Clifton Springs in 1980:
2.1 Regional Setting
The Drysdale/Clifton Springs township is situated on the northern side of the Bellarine Peninsula, approximately 15 kilometres east of Geelong. Drysdale is bisected by the Geelong - Portarlington Road, whilst roads from St. Leonards and Ocean Grove also converge on the town.
Drysdale primarily functions as a residential and commercial focus for the surrounding rural industries. The town also has a sub-regional role as the municipal administrative centre for the Shire of Bellarine. Clifton Springs, however, predominantly serves as dormitory suburb for Geelong.
2.2 Existing Urban Form
Drysdale and Clifton Springs have developed as two very distinct townships separated by a narrow belt of rural land, part of which has been subdivided into "5 acre" allotments.
Drysdale
Drysdale centres on the six-way intersection at the north-east corner of the original township subdivision. Ribbons of housing have developed along the main roads which converge on the intersection and a scattering of small acre subdivision has occurred in the surrounding rural area. A wide range of community facilities including the municipal offices, schools, shops and churches have been established in Drysdale in the vicinity of the six-way intersection.
Clifton Springs
Clifton Springs presents a complete contrast to Drysdale. Located north of Drysdale on land which slopes towards Port Phillip Bay, the area was subdivided in a uniform suburban pattern during the late 1950's. Approximately 3,500 allotments were subdivided and nearly 2,500 of these remain vacant.
No provision was made for community facilities apart from three small shopping centres, a golf course and a club house. This building was subsequently purchased by the municipality and functions as a Community Centre with sporting and recreational facilities. Although most facilities are available in Drysdale, the need to provide additional facilities in Clifton Springs, including a primary school, is becoming more pressing as the population continues to grow.
31 The Study examined the determinants of the future development of Drysdale and Clifton Springs, in particular population projections, residential development, rural land, and retail, commercial and community facilities. The discussion of future development of rural land is relevant:
The land surrounding the township is some of the most productive agricultural land in the Region. This particularly applies to the land on which the towns were established and which extends to the north and the west. The agricultural land to the west and south is clearly separated from the towns and is held in relatively large holdings. It consequently remains viable for intensive farming activity and fragmentation of existing holdings would be contrary to the Rural Area Planning Policy.
East of Drysdale, a transition occurs between urban and rural uses, however, the land has been extensively fragmented and farming is generally no longer viable west of Clarendon Road. The potential exists to rationalise some of this fragmentation and provide some additional small acreage residential allotments in this area if there is sufficient future demand. Beyond Clarendon Road, allotment sizes are sufficiently large to permit agricultural uses to continue, and further fragmentation would be clearly contrary to the Rural Areas Planning Policy.
Development rates over recent years indicate that there is a continuing but limited demand for Rural Residential type allotments. Assuming that present development rates continue, there are sufficient existing allotments to supply demand for approximately 13 years assuming that all vacant allotments are available for development. A recent rezoning north of Clifton Springs will permit approximately 40 additional allotments to be developed in the future; consequently there appears to be little justification for permitting additional subdivision of this type at this time.
The demand for smaller rural allotments, with areas of less than 1.0 ha. appears to be quite substantial. This is illustrated by the rapid development of the Huntingdon Street/Buccleugh Street area and the small allotments north of Drysdale Recreation Reserve. Limited releases of additional Residential C type allotments may, therefore, be justifiable in the future.
32 The Study's summary and conclusions in relation to future development were:
The development trends which are evident in Drysdale/Clifton Springs indicate that future development will be primarily orientated towards Clifton Springs.
This area contains sufficient subdivided residential land to satisfy future demand until at least the turn of the century. The existing "Rural (Future Urban)" and "Reserved Residential" zonings between Drysdale and Clifton Springs provide further potential for residential expansion, should the demand arise in the future.
The rural area east of Drysdale which is affected by the by-pass investigation corridor will not, therefore, be required for future residential expansion. The protection of existing agricultural land from further fragmentation into small acreage allotments will therefore be the main consideration in future planning of this area. The degree to which this objective can be achieved will be significantly affected by the location of the by-pass reservation around Drysdale.
33 The Study then examined five alternative alignments for the Bypass. The southern section of each alignment ran parallel to Andersons Road. Turning northwards, there were five possible routes:
(a) Alignment 1 was located along the western edge of the investigation corridor, and included a section along the western side of Sproat Street;
(b) Alignment 2 was located along the eastern side of Clarendon Road and re-joined the existing Portarlington Road in the vicinity of Whitcombes Road;
(c) Alignment 3 was located mid-way between Clarendon Road and Martins Lane, passing to the west of the water reserve on Drakes Road, and re-joining Portarlington Road north of Whitcombes Road;
(d) Alignment 4 was located along Martins Lane, along the eastern edge of the investigation corridor; and
(e) Alignment 5 was located along the western edge of the investigation corridor as far as the Queenscliff Railway, then diagonally across to Clarendon Road, running to the east of the hobby farm allotments abutting Sproat Street and re-joining Portarlington Road at Whitcombes Road.
The relative locations of the alignments considered are shown in Figure 4.
Figure 4: Map of alternative alignments included in the Drysdale By-pass Study - Planning Implications Report by C.L.G Fadgyas.
34 The Study concluded that Alignment 5 was, on planning grounds, the preferred alignment for a bypass reservation around Drysdale:
The location of a by-pass reservation in the investigation [corridor] east of Drysdale will have a significant effect on future land use in the area. Five alternative alignments have been examined in detail to determine their effects and to identify a preferred alignment.
Alignment 1 is the route which passes closest to Drysdale. It provides the most efficient local access route and does not affect any areas of environmental significance. However the route cuts through the fringe of development which extends eastwards from Drysdale, causing further fragmentation of allotments, and fails to separate agricultural land from the development pressures of Drysdale. Alignment 1 affects the largest number of existing dwellings (7) and properties and limits the potential for restructuring the area between Princess Street and Clarendon Road.
Alignment 2 generally reinforces the existing separation of agriculture from hobby farming, particularly in the area between Huntingdon Street and Murradoc Road. The route also provides more flexibility than Alignment 1 for future planning of the area between Drysdale and Clarendon Road. The disadvantages of the alignment are the large number of dwellings affected (5), the adverse effects on one area of environmental significance and the impact on an area of agricultural land south of Huntingdon Road.
Alignments 3, 4 and 4A are located more than 1 kilometre east of Drysdale through high quality agricultural land. These alignments leave large sections of existing agricultural land between the by-pass and Drysdale, encouraging fragmentation which is clearly contrary to the Rural Areas Planning Policy. These routes all affect areas of environmental significance and a1ignment 4A has an impact on 5 dwellings.
Alignment 5 has been located to achieve the benefits of Alignment 2 in separating agricultural uses from hobby farming, while minimising the impact on existing development and agricultural land. This alignment affects a small number of dwellings, minimises severance and does not affect any areas of environmental significance. It also provides flexibility for the future planning of the area between Drysdale and Clarendon Road and satisfactorily meets engineering and design requirements.
1981 - Drysdale Bypass Summary Report: Location Investigation
35 The Study's analysis of planning considerations informed a report submitted to the Shire of Bellarine, the Geelong Regional Commission, and the Country Roads Board by the Drysdale Bypass Study Steering Committee in February 1981. The report drew together investigations of the five alternative alignments from engineering, planning, and environmental perspectives. It assessed the alternatives having regard to location of houses, property boundaries, intersection design, cost, planning considerations, engineering performance, length, traffic service, and alignment.
36 The Steering Committee's conclusion was that Alignment 5 was the preferred alignment. Its evaluation was, in summary:
Alignment 1 is the route which passes closest to Drysdale and is presently reserved for a by-pass. It provides the most efficient local access role and does not affect any areas of environmental significance. The route does however cut through the fringe of the town. It affects the greatest number of houses (7) and places limitations on the future development of the town.
Alignment 2 generally reinforces the urban/rural boundary, and provides greater flexibility in regards to the development of the town. Disadvantages are the number of houses affected (5) the [effect] on one environmental area, and impact on agricultural land.
Alignment 3 is located approximately 1 kilometre east of Drysdale and runs through high quality agricultural land leaving an area of approximately 150 hectares of agricultural land between the By-Pass and Drysdale. It affects one environmental area and is the most expensive of the alternatives.
Alignments 4 and 4A are located on the eastern boundary of the corridor some 1.5 kilometres east of the town. The important environmental area of Sproat's water hole is affected by alignment 4. Because of the routes proximity to Martins Road, they result in poor intersection locations. Because of their length both routes are expensive.
Alignment 5 has been located to achieve the benefits of Alignment 2 in separating urban-rural land uses while minimising impact on existing development and agricultural land. It does not affect any environmental areas and provides flexibility in the future planning of the area between the By-Pass and Drysdale. It affects 4 houses.
37 The Steering Committee noted that the finalisation of the location of the Bypass would remove uncertainty and enable the preparation of a detailed structure plan for the town to proceed.
1983 - Geelong Regional Planning Scheme Amendment 26
38 The Steering Committee's recommended alignment for the Bypass was adopted by the Shire of Bellarine and the Geelong Regional Commission. An amendment to the Geelong Regional Planning Scheme was prepared during 1981, and exhibited between November 1981 and February 1982. Mr and Mrs Crowe made a submission at that time objecting to the proposed alignment, which cut through their land.
39 An independent panel was appointed to consider submissions received by the Commission. The Commission's report to the Panel included a summary of its evaluation of the alternative alignments, and noted the objections to the proposed amendment. Its comment on objections raised by Mr and Mrs Crowe was as follows:
The location of the objectors' land is indicated on the attached plan. It is evident that these are the most affected properties and that the impact would be substantial. However, the location of the alignment is such that usable or saleable areas of land would be created. Particular regard is also being paid to the future zoning of these portions as part of the process of producing a Structure Plan to guide future development of Drysdale/Clifton Springs.
The problem of detrimental effects on property owners was examined carefully by the Committee and it is evident that any alignment is inevitably going to affect a number of dwellings, particularly along Murradoc Road, and that rural properties will be significantly affected. However, the preferred alignment minimises these problems as far as possible.
40 Figure 5 shows the proposed route, and its intersection with the Drakes land and the Murradoc land.
Figure 5: Geelong Regional Planning Scheme - Rezoning Application Map.
41 The Panel provided its report in July 1982. It concluded that there was a need to establish a reservation for a future Bypass, and that the route selected appeared to be soundly based and offered minimum disturbance to properties and the local environment generally. In relation to the Crowes' objection, it noted:
In the matter of the objection by P. & W. Crowe, the proposed alignment would pass through the two parcels of current farming land, and after acquisition for that alignment the residue of the properties to the east of the alignment would still be sufficiently large for effective farming.
Furthermore, since there is an expressed intention in the planning documents that the proposed alignment would generally form a boundary separating semi-urban and agricultural land, it can be inferred that, in the matter of the residue of the properties on the western side of the proposed alignment, the landowners would gain the benefit of any future rezoning to semi-urban use in that area.
42 Figure 6 shows Amendment 26 to the Geelong Regional Planning Scheme, adopted in 1983. It moved the proposed alignment of the Bypass to the east, across the Drakes land and the Murradoc land.
Figure 6: Alignment adopted by Amendment 26 to the Geelong Regional Planning Scheme.
1983 - Adopted Drysdale/Clifton Springs Structure Plan
43 At the same time, the Geelong Regional Commission was undertaking a process of public consultation about its proposed structure plan for Drysdale and Clifton Springs. It released a public discussion paper in mid-1982. The introduction explained that the draft structure plan was not concerned with extending urban boundaries, 'as there is sufficient zoned capacity within the study area to accommodate growth (at even the most optimistic rates) into the 21st Century'. There was said to be enough residentially subdivided land available in Drysdale/Clifton Springs for at least the next 50 years.
44 In relation to rural land, the discussion paper noted:
The land surrounding Drysdale is some of the most productive agricultural land in the Region, particularly the land on which Drysdale (and Clifton Springs) was established, and other land to the north and the west. Intensive farming, particularly potato growing is the main agricultural land use.
Land to the west and south is clearly separated from the existing townships by Jetty and Andersons Road, and, because it is held in relatively large holdings, it remains viable for intensive farming and cropping. Soils to the south are more variable than soils to the west. As a result the land to the south is less suitable for intensive farming. Some cropping occurs and since much of this land is pasture, it is used for prime lamb, wool, beef, and dairy production.
East of Drysdale, on the heavy basaltic soils, pasture production is the primary form of land use. The area is well suited to prime lamb and other fattening enterprises. Land here has been extensively fragmented and this provides a transition between urban and rural uses. This is particularly the case in the area between the proposed By-Pass reservation and the existing township where farming is no longer viable. The Structure Plan recognises the potential to rationalise some of this fragmentation and thereby provide additional small acreage residential allotments in the future based on demand. Beyond Clarendon Road, allotment sizes are sufficiently large to permit the continuation of agricultural uses, and small acre subdivision would be clearly contrary to the policies adopted in the Geelong Rural Residential Study.
45 The Geelong Rural Residential Study informed the Geelong Region Rural Residential Living Strategy, adopted by the Commission in February 1983. The Strategy was considered necessary:
... to ensure that valuable agricultural capacity is not indiscriminately endangered, that rural residential development accords with infrastructure constraints, that it does not jeopardise the future growth corridors of urban Geelong or the Region's townships, that it does not intrude into sensitive environmental areas or hazardous locations, and that the supply of allotments is related to the rate of development (building activity).
46 The Strategy included a locational assessment, based on supply, development rates, price, distance from Geelong, and services. This last factor was an important consideration:
There is a direct link between the rate of development and the level of basic services (water, power, electricity) available. Development is extremely low in areas without reticulated water except where other factors such as price, distance to Geelong or landscape characteristics are exceptional. There appears to be a relationship between development rates and areas having a hotel nearby (e.g. Bannockburn, Batesford, Lara, Drysdale/Clifton Springs and Torquay).
Even locations such as Bellbrae and Bells Beach with their attractive landscape characteristics have had extremely low development rates, due to the lack of a reticulated water supply.
The provision of reticulated water was a prerequisite for any new subdivision within a rural residential zone, and the State Rivers and Water Supply Commission was refusing consent for subdivisions if reticulated water could not be provided at a reasonable cost.
47 The Strategy was one of containment and consolidation rather than identification of new growth areas. It recommended the concentration of rural residential development - sometimes referred to as hobby farming - at six locations in the region, including Drysdale/Clifton Springs. In relation to Drysdale, the Strategy noted:
This important potato growing locality experienced considerable fragmentation in the 1950's and 1960's particularly east and north-east of the township.
Development rates have generally been low (except for the allotments in the Rural Future Urban zone between Drysdale and Clifton Springs) and are declining. A 1977 rezoning of the north-east of Clifton Springs combined with further "infill" rezonings foreshadowed in the Drysdale/Clifton Springs Structure Plan (to be adopted in early 1983) will provide sufficient capacity for the foreseeable future.
48 The Drysdale/Clifton Springs Structure Plan was adopted by the Geelong Regional Commission in December 1983. The study area extended north from Andersons Road to Port Phillip Bay, and east from Jetty Road to Martins Road - as shown in Figure 7.
Figure 7: Map of study area for 1983 Drysdale/Clifton Springs Structure Plan.
49 The Structure Plan identified a threefold role for Drysdale/Clifton Springs on the Bellarine Peninsula:
50 It provided a detailed analysis of the opportunities for and the constraints on future development:
Drysdale/Clifton Springs has ample undeveloped residential land ranging from the conventional 0.1 ha. allotment (1/4 acre block) to the 2 ha. (5 acre) rural residential allotment. The August Public Discussion Document (Chapter 3) comprehensively analysed the allotment supply within the Study Area and concluded that Drysdale/Clifton Springs has a range of residential land sufficient to cater for demand well into the next century.
This overabundant supply of residential land is not matched by provision for community and commercial facilities, and this reflects a number of constraints and opportunities.
Water Supply:
Water Supply is not a constraint (except above 80m A.H.D.) within the Study Area. The present system is capable of serving in excess of 4,500 properties and capacity is to be boosted by an additional gravity system to be fed from tanks east of Drysdale.
Drainage:
The nature of the topography ensures that stormwater drainage is channelled into relatively efficient natural water courses. Runoff not retained in Lake Lorne or McLeods Holes terminates in Port Phillip Bay.
Sewerage:
At present neither Clifton Springs nor Drysdale is served by a reticulated sewerage system, however once established most of the existing residential (and future residential) land will be capable of gravity reticulation. The few areas which will require pumping do not pose a serious constraint. A sewerage treatment plant is proposed west of Jetty Road. The ultimate location of the plant should not pose a constraint except in the very long term future.
Topography:
The Study Area generally rises from Port Phillip Bay towards the east and south to about 85m. A.H.D. It is mildly undulating open grasslands interspersed with some drainage gullies and a few stands of native vegetation. Slopes rarely exceed 5% making the area ideal for urban development. Slopes generally face north to west.
Soil:
Drysdale and Clifton Springs are located at the centre of some of the State's best potato growing soils. This poses a major constraint to further westerly development.
Landscape:
Within the landscape context particular opportunities and constraints are to be seen in the following areas:
Most of the above features present opportunities rather than constraints since they are all contained within existing reservations and therefore their preservation and enhancement is an important contribution to the overall quality of present and future residential living.
Growth Constraints:
In the long-term Drysdale/Clifton Springs has growth constraints in all but one direction:
Northwest
Development is constrained by Port Phillip Bay.
Northeast
Development is effectively constrained by a recent Rural Residential rezoning which will ultimately lead to a buffer of low density allotments extending from the Bay to the Drysdale/Portarlington Service Basin.
East
Development could be effectively constrained by the construction of the Drysdale By-pass Road, and the difficulty of water provision due to the topography.
South
Development is effectively constrained by the existing buffer of smallacre subdivision and will be further constrained by the Drysdale Bypass Road (which will run parallel to Andersons Road) when completed.
West
This is the logical direction for future growth, however prime soil for intensive agriculture must pose a serious constraint. The (as yet) undetermined location of the proposed sewerage treatment plant is unlikely to pose a constraint except in the very long term future, however the location of the Curlewis Golf Course does pose a major constraint.
Existing Subdivision Pattern and Existing Development
The nature and scale of the existing subdivision pattern and the nature of existing development in the low density residential areas poses a major constraint not only to future long term urban development, but also in respect of difficulties now imposed on land assembly for the provision of community facilities, highlighted by reference to Figure 4 which clearly shows the extent of fragmentation.
Even the most optimistic future growth projections indicate that there is ample residential land available for the next 50 to 70 years within the existing urban boundaries. Within these constraints there is also sufficient capacity for future small-acre (rural/residential) uses capable of being served by a reticulated water supply.
...
51 The Objectives of the Structure Plan were stated as follows:
The future size of Drysdale/Clifton Springs has largely been predetermined by the location and scale, of premature subdivision in the late 50's and early 60's.
Therefore the prime objective of this Structure Plan is to ensure that those deficiencies arising from that period in terms of community facilities etc. are now rectified and that future development is in accordance with sound planning principles.
This plan is aimed at ensuring that no person proposing to locate in the Drysdale/Clifton Springs area will feel disadvantaged by comparison to similar centres in the region and that they will be able to base their decisions upon that certainty. The plan further facilitates the growth of Drysdale/Clifton Springs within the framework of adopted Strategies and Policies including the Geelong Region Retail Strategy, and the Geelong Region Rural Residential Living Strategy.
Finally, whilst there is sufficient capacity for growth well beyond the turn of the century the Structure Plan identifies the direction for very long term growth beyond this time should future decision makers decide what future urban growth is appropriate beyond the existing urban limits.
However, opportunities and constraints like public attitudes and expectations change over time. Therefore this Structure Plan which will span several decades should not be seen as an inflexible document. If regular monitoring indicates deficiencies it should be changed after consultation with appropriate parties.
52 The broad strategy was to reinforce the separation of Drysdale and Clifton Springs, retaining the band of low-density residential subdivision between them, but linking them with a 'spine' comprising future education and recreational facilities, and existing retail and community facilities. This is illustrated in Figure 8.
Figure 8: Drysdale/Clifton Springs Concept Plan map.
53 No additional areas were to be set aside for residential development, beyond those identified in the Structure Plan. The Drysdale shopping centre was to be further developed, and the area east of the central intersection was identified as the appropriate site for a future sub-regional retail and commercial centre.
54 The Structure Plan proposed rezoning land immediately to the west of the Drakes land and the Murradoc land from Rural General Farming to Rural Residential. It was also proposed to rezone land in the 'buffer' between Drysdale and Clifton Springs and a small area of land to the west of Jetty Road from Rural Future Urban to Rural Residential. The rezoning was implemented by Amendment 84 to the Geelong Regional Planning Scheme in 1984.
1992 - Drysdale/Clifton Springs Structure Plan
55 In June 1988, the Geelong Regional Commission published Directions - The Geelong Regional Development Strategy. It designated three urban growth areas on the coast, at Torquay/Jan Juc, Ocean Grove, and Drysdale/Clifton Springs. The preferred direction of growth was to the west of Drysdale, on the western side of Jetty Road. In June 1991, a large area of land west of Jetty Road was rezoned as Rural Future Urban, by Amendment R73, Part 1 to the Greater Geelong Planning Scheme.
56 The designation of Drysdale as a growth area prompted the preparation of a new structure plan for Drysdale and Clifton Springs, which was published by the Commission in May 1992 (1992 Structure Plan). The population of the area was growing much faster than had been anticipated in 1983, although there was still 'sufficient residentially subdivided, fully serviced land available to accommodate its projected 2010 population of 15,400 people'. One objective of the 1992 Structure Plan was 'to ensure an adequate choice of fully serviced residential locations within Drysdale and Clifton Springs'.
57 The 1992 Structure Plan examined in some detail the opportunities for and constraints on development. Of particular relevance here are the observations in relation to services, rural land, and growth constraints:
4.4 Services
All normal reticulated urban services (water, sewerage, electricity, telephone) are available within the study area, and a reticulated gas supply is currently being extended to the area.
The Geelong and District Water Board has provided detailed information about the availability and capacity of existing water supply and sewerage systems. The existing systems have been designed to serve the areas already zoned for urban development and from an economic viewpoint should be utilized more fully before further extensions into undeveloped areas are carried out.
Future provision of water supply to the north and east of the existing town will be expensive to provide and is a constraint to future urban development in that area. Land to the west of Clifton Springs can be economically provided with reticulated water supply and sewerage in the longer term but will require a substantial augmentation and upgrading of the existing systems. The Geelong and District Water Board advises that the sizing and timing of the augmentation works will depend to a large extent on the outcome of the Structure Plan review and the estimated rate of growth of the townships.
...
4.6 Rural Land
The land surrounding Drysdale has been some of the most productive agricultural land in the Region where in recent times intensive farming, particularly potato growing has been the main agricultural land use.
Land to the west and south of the existing urban and rural residential "edges" is still held in relatively large holdings, thereby increasing the potential viability of holdings for intensive farming and/or cropping.
Soils to the south are more variable than soils to the west. As a result the land to the south is less suitable for intensive farming. Some cropping occurs and since much of this land is pasture, it is used for prime lamb, wool and beef production.
However, a number of properties in the area (mostly to the west and a lesser number to the south) have been contaminated by Dieldrin and therefore farm management practices will have to be substantially modified.
East of Drysdale, on the heavy basaltic soils, pasture production is the primary form of land use. The area is well suited to prime lamb and other fattening enterprises. Land here has been extensively fragmented and this provides a transition between urban and rural uses. This is particularly the case in the area between the proposed By-Pass reservation and the existing township, and to a lesser extent beyond the proposed reservation to Martins Road.
Existing zoning which is in conformity with the objectives of the Geelong Region Rural Residential Strategy recognises the potential to rationalise some of this fragmentation and thereby satisfy the existing demand for semi-rural (i.e. rural residential) living.
4.7 Growth Constraints
In the long-term Drysdale/Clifton Springs has growth constraints in all but one direction:
Northwest
Development is constrained by Port Phillip Bay.
Northeast
Development is effectively constrained by water supply and the rural residential development which forms a buffer of low density allotments extending from the Bay to the Drysdale/Portarlington Service Basin.
East
Development will be effectively constrained by the long-term construction of the Drysdale By-pass Road. Residential and rural residential uses beyond the By-pass Road alignment will not be supported.
South
Residential development is effectively constrained by the existing buffer of small acre subdivision and will be further constrained by the Drysdale By-pass Road (which will run parallel to Andersons Road) when completed.
West
This is the logical direction for future growth, the only likely constraint being that the area is of prime intensive agricultural capability (potatoes). The location of the Curlewis Golf Course will also prevent development from abutting the Portarlington Road.
58 The opportunities and constraints were shown on the map that is Figure 9.
Figure 9: 1992 Drysdale/Clifton Springs Structure Plan opportunities and constraints map.
59 The 1992 Structure Plan included two significant departures from the Commission's previous plan for future residential development in Drysdale and Clifton Springs. First, a number of 'infill areas', including the buffer that had been maintained between Drysdale and Clifton Springs, were rezoned as residential, to permit residential development in those areas in the short term. Second, the area west of Jetty Road was identified as the future development 'front' rezoned from General Farming to Rural Future Urban, for development as a residential area in the longer term. It was not proposed to rezone the land to the east of the proposed Bypass to Rural Residential.
60 The existing Drysdale town centre was retained as the main commercial centre for Drysdale and Clifton Springs, and an area south of Andersons Road was earmarked for a proposed Bellarine civic precinct.
2000 - New Format Greater Geelong Planning Scheme
61 The new format planning scheme for the City of Greater Geelong was introduced on 27 July 2000. It reflected existing policy in that Drysdale/Clifton Springs was a projected growth area on the Bellarine Peninsula, which was to be maintained as a predominantly rural area. Future urban growth on the Bellarine Peninsula was to be focussed on Ocean Grove and Drysdale/Clifton Springs:[13]
Drysdale/Clifton Springs has also for many years been designated for coastal growth on the Bellarine Peninsula and Council continues to support this strategy. It is planned for the two to link together with new residential development being 'infill' between the two townships. Further opportunities exist to consolidate the rural residential zones within the townships and generate increased subdivision and density. The Structure Plan identifies future long term growth to the west of the township - west of Jetty Road, in the vicinity of the new primary school. Future opportunities also exist in the vicinity of the Bellarine Sub-Regional Centre which is planned to develop as a mixed use environment with two secondary colleges already on the ground and a multi-arts facility soon to commence construction.
62 The 1992 Structure Plan was adopted in cl 21.33 of the Greater Geelong Planning Scheme, with a commitment to reviewing the status of land to the east of the proposed Bypass and to the east and south of the proposed civic precinct. Clause 21.33 set out the importance of Drysdale/Clifton Springs and the key issues for the area as follows:
Drysdale and Clifton Springs are located on the Bellarine Peninsula approximately 20 kilometres to the east of urban Geelong. Drysdale/Clifton Springs has a twofold role as a bayside dormitory town for Geelong and as the residential and commercial focus for the surrounding hinterland. Under the Urban Growth Strategic Direction it is a designated growth area.
The two townships have been separated by a rural buffer in the past but they are now gradually merging as one urban entity in accordance with planning policy.
The townships are well suited to cater for future demand on the Bellarine Peninsula and have the capacity to provide for many regional needs with the continued development of the Bellarine Sub-Regional Centre.
Environmental factors and infrastructure provision provide opportunities and constraints to the further development of Drysdale/Clifton Springs. These include:
63 Six objectives derived from the Drysdale/Clifton Springs Structure Plan were set out in cl 21.33. Objective 1 was to ensure an adequate choice of fully serviced residential locations within Drysdale and Clifton Springs. The following strategies were directed to achieving that objective:
64 The Greater Geelong City Council adopted the Jetty Road Urban Growth Plan in June 2007, setting the strategic direction for the development of land in the Jetty Road growth area. The policy context for the Growth Plan was described as follows:
Development of Drysdale/Clifton Springs has been informed by the Drysdale/Clifton Springs Structure Plan (1992). The land west of Jetty Road has also been identified as a growth area in Council's Urban Growth Strategy (1996). The area has been designated for urban growth as it is considered to have a high level of amenity, good access to services and development of the site would be expected to have minimal adverse impact on the environment. The UGP[14] makes a significant contribution to achieving State Government policy to provide at least 10 years lot supply for residential development for the township of Drysdale/Clifton Springs.
65 The Jetty Road growth area and the urban growth limit for Drysdale and Clifton Springs are marked on the map that is Figure 10.
Figure 10: Jetty Road Urban Growth Plan Local Context Map.
66 The Growth Plan estimated that it would take approximately 25 years to develop the entire Jetty Road site. It included a structure plan for development of entire growth area, including the area between the Bellarine Rail Trail and Portarlington Road.
67 In relation to services, the Growth Plan noted that Drysdale/Clifton Springs was fully serviced for gas, electricity and communications, and that these utilities could be extended to the Jetty Road growth area. Barwon Water had advised that reticulated water could be provided to the area by gravity, with some augmentation of the pipe network in the course of the development. Reticulated water was expected to be part of the first stage of development from the existing mains. There was some sewerage capacity within the existing infrastructure, with a need to upgrade the pump station in future.
68 Land in Stage 2 of the Jetty Road growth area was rezoned to Residential 1 by Amendment C152 to the Greater Geelong Planning Scheme, on 22 December 2009.
69 The Council adopted a Rural Land Use Strategy in May 2007, which did not depart significantly from the existing policy position. Key strategic directions of the Strategy included:
70 In relation to the Bellarine Peninsula, the Strategy sought to maintain its rural landscapes and to keep urban development within established settlement boundaries:
The Bellarine Peninsula contains a settlement structure of planned towns which are part of the extended urban area. Considerable strategic planning has been undertaken to provide for the managed expansion of some of these towns and all towns have been planned on the basis of clear settlement boundaries. The Peninsula retains unique, high quality rural landscapes associated with viticulture, horticulture, cropping and grazing around these towns as a result of previous planning strategies.
The Peninsula has an obvious tourism attraction with the coast and the rural landscapes are an important element of this package. It also supports significant environmental values including wetlands and coastal areas. Most of the rural land on the Peninsula is of Class 2 and 3, and is deemed suitable for some intensive uses (viticulture and horticulture) and extensive cropping and grazing. Most rural lots are retained in sizes that have productive potential.
Consistent with the findings of the Bellarine Peninsula Strategic Plan, this strategy proposes that the unique, high quality rural landscapes of the Bellarine Peninsula be maintained through the ongoing support for agriculture in the rural areas. This rural character of the Bellarine Peninsula is highly valued by local residents and visitors, and is a fundamental part of the livability and identity of Geelong.
Implementation of this strategy will involve supporting the "right to farm" of local land owners, preserving non urban breaks between towns, ensuring dwelling development and subdivision will not remove properties from agricultural use, managing the location and scale of tourist facilities so that they do not undermine the rural character of land beyond the towns and protecting and enhancing environmental assets to improve the overall condition of the natural resource base.
71 In July 2007, the Council also adopted its Housing Diversity Strategy. Consistent with existing policy, Drysdale/Clifton Springs was identified as a focus for urban growth on the Bellarine Peninsula. The town centre of Drysdale was marked as an 'increased housing diversity area', with a mix of high, medium and conventional density housing to be encouraged. Areas around Drysdale were nominated for 'incremental change', with marginally less intensive development envisaged for those areas.
2010 - Drysdale/Clifton Springs Structure Plan
72 A further structure plan for Drysdale/Clifton Springs was adopted by the Council in September 2010, and implemented in the Greater Geelong Planning Scheme by Amendment C194, with effect from 6 January 2011. The policy context for its adoption included Drysdale/Clifton Springs' status as a growth area, and a need to nominate a clear settlement boundary for the township and provide a compact urban form.
73 The 2010 Structure Plan designated 20 years' lot supply, with the addition of Stage 1 of the Jetty Road growth area and other infill areas identified for new residential development. It anticipated an increase in the combined population of Drysdale and Clifton Springs from 11,041 people in 2008, to a forecast 13,641 people in 2021.
74 In relation to urban growth, the 2010 Structure Plan identified the following principles and directions:
75 Specific attention was paid to two areas of 'fringe rural living land' west of the Drakes land and the Murradoc land. The Drakes Road and Collins Street area, to the west of the Drakes land, was nominated to remain in the existing Rural Living zone to maintain rural residential character. The Sproat Street area, to the west of the Murradoc land, was identified as providing an opportunity for medium to long term urban consolidation, although not required in the life of the 2010 Structure Plan.
76 Drysdale was recognised as a service centre for nearby communities such as Portarlington, St Leonards, and Indented Head. It was proposed to retain the Drysdale town centre as the focal point for retail and commercial activity, with an expansion of the commercial area on Murradoc Road to the east of the central intersection.
77 In relation to rural areas, the 2010 Structure Plan designated a 'well planned and clear urban settlement boundary', to ensure that 'rural land is protected from the ad-hoc conversion to residential activity'. The following principles and directions were adopted in relation to rural areas:
78 The 2010 Structure Plan included a map depicting the settlement boundary and the Jetty Road growth area, as seen in Figure 11.
Figure 11: 2010 Drysdale/Clifton Springs Structure Plan map.
79 Since the 2010 Structure Plan came into effect, there have been a number of amendments to the Greater Geelong Planning Scheme, including the incorporation of some significant policy documents. None of these altered the direction of growth and the settlement boundary determined in the 2010 Structure Plan.
80 The Drysdale Urban Design Framework was adopted by the Council in August 2012. It built on the 2010 Structure Plan, and provided guidance for the development of the town centre of Drysdale. It anticipated that the population of Drysdale/Clifton Springs would increase to nearly 25,000 over the next 20 to 30 years, with most of this growth expected to occur within the Jetty Road growth area. It recommended extension of a 'business corridor' along Murradoc Road to the east of the central intersection, and the development of a streetscape masterplan for Murradoc Road.
81 At the time of acquisition of the Drakes land and Murradoc land, the Council was developing its Settlement Strategy, which was subsequently adopted in October 2018. The Settlement Strategy reinforces existing settlement boundaries as a way of maintaining township size and achieving urban consolidation. It also limits rural living developments to existing zoned land in Drysdale/Clifton Springs, and maintains the non-urban breaks between townships on the Bellarine Peninsula.
82 The Municipal Strategic Statement in the Planning Scheme provides a current statement of the Greater Geelong City Council's planning policies. Relevantly here:
There is an environmental, economic and social imperative to reduce urban sprawl and improve accessibility to urban services, principally by consolidating urban development around places of activity and public transport infrastructure.
New infill development should be directed to well serviced areas and should be of a high design quality and respond to the locality. Outward urban growth needs to be carefully managed and directed to designated locations that offer the greatest net benefit to the Geelong community, can be appropriately serviced and which have the capacity to accommodate sustainable development.
All development should contribute positively to the quality of the urban environment so that it may be enjoyed and respected by the existing and future community.
Whilst rural living areas provide for greater consumer choice in the housing market, they can be inefficient to service and generally contrary to the objective of maintaining a farmed rural landscape in the City's rural areas. There is consequently a need to restrict rural living to specific locations and to ensure that consumers meet their equitable share of the cost of servicing such locations.
The municipality's rural living nodes will continue to rely on established townships and urban Geelong for commercial and community facilities.
(c) Similarly, the policy in relation to urban growth seeks to limit urban sprawl by directing urban growth to designated growth areas, including Drysdale/Clifton Springs. Strategies for achieving this objective include ensuring development occurs within designated settlement boundaries, and limiting rural living development to existing zoned land in the existing nodes, including at Drysdale/Clifton Springs.[17]
(d) The policy for the Bellarine Peninsula includes an objective of protecting and enhancing the rural and coastal environment on the Peninsula, and maintaining non-urban breaks between settlements.[18] Strategies include ensuring that development outside of settlement boundaries does not compromise the rural, environmental and landscape values of the non-urban breaks.[19]
(e) Specifically in relation to Drysdale/Clifton Springs, the strategies include:[20]
83 The Municipal Strategic Statement includes the structure plan for Drysdale/Clifton Springs at Figure 12.
Figure 12: Drysdale/Clifton Springs Municipal Strategic Statement structure plan map.
84 As discussed, the separate questions must be determined on the basis of the opinions of planning experts, based on the relevant planning history. Mr and Mrs Crowe called Brendan Rogers to give expert evidence as to the development potential of the Drakes land and the Murradoc land. The Authority relied on the expert opinions of two planners, Sophie Jordan and Andrew Clarke.
85 The three planners held a joint conference on 2 April 2020, and their joint statement records agreement on some general matters:
86 The matters about which they were not agreed were substantial. As noted in the joint statement:
87 Mr Rogers has a Bachelor of Town and Regional Planning with first class honours from the University of Melbourne, and a Graduate Diploma of Property from RMIT. He has practised as a town planner for more than 30 years, and is a director of Urbis Pty Ltd.
88 On 1 March 2018, Mr Rogers was engaged by the solicitors for Mr and Mrs Crowe to provide a planning opinion on the relevance of the Bypass overlay to the Drysdale Structure Plan, including whether the Drakes land and the Murradoc land may have been in a developable area, if it were not for the overlay. He provided his opinion in a report dated 27 March 2018.
89 Mr Rogers' opinion was that Drysdale would have developed differently in the absence of the Bypass proposal. He considered that the factors affecting the likely development options were:
(a) proximity to the Drysdale town centre;
(b) man-made impediments to development; and
(c) the Drysdale entry point along Murradoc Road.
90 As to the first factor, Mr Rogers noted that land within a 2.5 kilometre radius of the commercial heart of Drysdale has generally been developed, with the exception of land to the east and south of the line of the proposed Bypass. This is illustrated in Figure 13.
Figure 13: Map showing a 2.5 km radius from the Drysdale town centre, provided in the report of Brendan Rogers dated 27 March 2018.
91 While acknowledging proximity to the coast as a 'drawcard', he considered that proximity to the commercial heart of Drysdale was likely to be an equal, if not greater driver for development location. This was reinforced by the expansion of the town centre along Murradoc Road, which was envisaged in the 2010 Structure Plan. But for the Bypass proposal, proximity to the town centre would likely have led to land to at least Martins Road, including the Drakes land and the Murradoc land, being designated for residential development.
92 In relation to the second factor, Mr Rogers observed that the road network was arranged in a generally regular quadrilateral form around Drysdale. The exception to this is that Martins Road does not continue to the south below Murradoc Road. He considered that, in the absence of the proposed Bypass to the east of the town centre, it was likely that development would have occurred in a more balanced fashion around the town centre. Specifically, it was likely to have extended east towards Martins Road in the short-medium term, rather than having a greater focus to the west. This is illustrated in Figure 14.
Figure 14: Map showing road layout around Drysdale, provided in the report of Brendan Rogers dated 27 March 2018.
93 The third factor concerned the fact that Murradoc Road provides the primary entry point into Drysdale from St Leonards to the east and Indented Head to the north-east, and possibly also Queenscliff and Point Lonsdale to the south-east. Mr Rogers considered that, in the absence of the Bypass proposal, it was likely that development would have occurred along Murradoc Road to the east to better mark the entry point into Drysdale. The development of residential properties along Murradoc Road would have allowed a graduated increase in density leading into the town centre of Drysdale, a superior entry experience to the current abrupt change from farm land to large lot commercial and industrial properties.
94 Mr Rogers' opinion was that the structure of Drysdale in the absence of the Bypass proposal would likely have included the Residential Growth Zone extending around all the commercial zones of Drysdale, including the Commercial 2 zoned land along Murradoc Road. The designation of land in the Rural Living Zone immediately west of the Bypass alignment as 'medium-long term urban consolidation' was consistent with that view.
Figure 15: Map showing distances (in metres) between certain zones in Drysdale, provided in the report of Brendan Rogers dated 27 March 2018.
As illustrated in Figure 15, the Residential Growth Zone generally extends 300-400 metres from the commercial zoned land in all directions but the east. Mr Rogers considered that, but for the Bypass, the same zoning would likely have applied to the east, meaning that the Murradoc land would likely have been included within that zone. Land beyond that range, including the Drakes land, would likely have been included in the General Residential Zone, providing a transition to the Farming Zone east beyond Martins Road and the General Residential or Rural Living Zone north beyond Drakes Road.
96 In summary, Mr Rogers' opinion was that, in the absence of the Drysdale Bypass:
(a) the likely urban boundary would have been at least as far east as Martins Road; and
(b) proximity to the town centre would have meant that the Murradoc land would likely have been zoned Residential Growth Zone and the Drakes land would likely have been in the General Residential Zone.
97 Shortly before the trial, Mr Rogers was asked to review a number of historical planning documents, including the September 1980 Drysdale Bypass Study: Planning Implications Report, the February 1981 Drysdale Bypass Summary Report: Location Investigation, and the June 1982 Drysdale/Clifton Springs Structure Plan public discussion paper. He did so, and confirmed in a letter dated 2 November 2020 that nothing in those documents caused him to change his opinion set out in his report.
98 Mr Rogers also referred to the 2007 Rural Land Use Strategy, which recorded agricultural land capability in the Geelong region. He pointed out that the Jetty Road growth area and the northern part of the acquired land were high quality agricultural land, while the southern part of the acquired land (most of the Murradoc land) was of moderate quality.
99 Mr Rogers elaborated on the basis for his opinion in his evidence in chief at the trial. He said that he had focused on the analysis from 1992 onwards, because it was in the 1992 Structure Plan that Drysdale/Clifton Springs was first designated as a growth area. By that time, the Bypass was a significant influence on strategic planning for the town; the 1992 Structure Plan recognised it as a constraint on development to the east, and stated that residential and rural residential uses beyond the Bypass alignment would not be supported. This remained the case when the Jetty Road Urban Growth Plan was adopted in 2007, and in the 2010 Structure Plan. Without the constraint of the Bypass, it would still have been necessary to determine the direction of growth. Looking at all of the other factors, what may have been the situation?
100 He considered that there were no impediments to servicing the land to the east of Drysdale, including Mr and Mrs Crowe's land. The 1992 Structure Plan identified that all normal reticulated urban services - water, sewerage, electricity, telephone - were available within the whole study area, and that reticulated gas was being extended. There were no natural impediments to developing the land on the eastern side of town. The area is mildly undulating, with a gradual slope up from the coast. Water supply was available up to 85 metres AHD,[21] which included large areas of land to the east, including the Crowes' land.
101 There were areas of infill development that had occurred since the rezoning of the Jetty Road growth area in 2009. One of those infill areas was to the east - the area south of Murradoc Road and east of the town centre. Mr Rogers had analysed the nature of the land to the east of the town centre, including its rural quality, and considered that there was not a lot of difference between it and the Jetty Road growth area. Its slightly higher elevation was not significant, because it was still serviceable. Factors that favoured development of the land to the east were that ownership of that land was more fragmented than the Jetty Road growth area, it was grazing land rather than potato farming land, and was of lesser agricultural quality. From the point of view of proximity to services, community facilities, and road networks, the two areas were comparable. The claimants' land had the advantage of being closer to the town centre than parts of the Jetty Road growth area. He could see no reason why growth would not have extended beyond the alignment of the Bypass. He considered that, but for the Bypass, the Drakes land and the Murradoc land would have been rezoned for residential use in around the mid-2000s.
102 In terms of making a choice about the direction of growth, Mr Rogers explained that strategic planning involved balancing out a range of factors. It is not often that everything aligns, some factors will be more important than others, and it is a matter of working through the options to identify the better one. He said that it would not have been an option to extend the town boundary indefinitely; it was a matter of asking 'Where is our growth?', and reviewing that every 10 years or so.
103 In cross-examination, Mr Rogers clarified that he prepared his report in March 2018 based on a desktop review of the material. He did not visit the area. He considered he had sufficient information then to form an informed view, and the provision of subsequent documents such as the 1983 Structure Plan had not changed his view. Mr Rogers said he had not placed much emphasis on the 1983 Structure Plan because at that time the focus was not on growth; land already identified for residential development was sufficient until the turn of the century, and there was no consideration of going beyond the existing boundaries.
104 Taken to the growth constraints noted in the 1983 Structure Plan, in particular the difficulty of water provision to the east, Mr Rogers agreed that he had not referred to it in his report. He did not consider it relevant because serviceability was no longer seen as a constraint in the 1992 and 2010 Structure Plans. He accepted that the 1992 Structure Plan noted that it would be expensive to supply water to the east of the existing town, but said that this was balanced out by the expense of augmenting the existing system to the west. When pressed, he acknowledged that the 1992 Structure Plan identified water supply as a constraint on development towards the east.
105 Mr Rogers agreed that he had not referred to the 1988 Geelong Regional Development Strategy, which indicated west as the future direction of growth for Drysdale.
106 Asked about Figure 14,[22] Mr Rogers explained he had used the 2.5 kilometre radius from the Drysdale Town Centre as an analytical tool, and to explain his thinking. He agreed he was not suggesting that Drysdale would have developed in a circular fashion. The diagram simply illustrated proximity to the town centre, it did not reference any provision of the planning scheme or strategic planning document.
107 Mr Rogers accepted that, in 1983, anyone who sought to expand the urban boundary of Drysdale for residential development would have been met with opposition by the relevant authorities, and would have been unsuccessful. He agreed that an application for rezoning in 1992 would also have been unsuccessful, with the qualification that by that time the area west of Jetty Road had been designated for future growth. He accepted that, from that time onwards, the whole focus of growth was to the west, in the Jetty Road growth area.
108 Taken to the Municipal Strategic Statement in the Greater Geelong Planning Scheme, and its emphasis on preserving rural land for agricultural use and limiting urban sprawl, Mr Rogers agreed that it bore against rezoning land on the urban fringe of Drysdale from farming to residential. He qualified that by pointing out that the Jetty Road growth area had been prime quality agricultural land before it was rezoned. He agreed that, once the Jetty Road growth area had been rezoned, there would have been no appetite to rezone further farming land for residential use.
109 Mr Rogers was asked a number of questions about an area of land immediately to the west of the Drakes land that is in the Rural Living Zone. He acknowledged that the Independent Panel report on the 2010 Structure Plan rejected a suggestion that this area was appropriate for residential development. He could not point to anything that connected the Panel's conclusion with the presence of the Bypass. He disagreed, however, that further eastward expansion of the town was less likely because of this area of land in the Rural Living Zone.
110 Mr Rogers did not agree that the Significant Landscape Overlay related to Murradoc Hill, to the east of Martins Road (SLO 13), weighed against the prospect that land west of Martins Road might have been rezoned for residential use. In re-examination, he explained this by reference to a residential development in Portarlington that is adjacent to the other side of SLO 13.
111 In relation to the settlement boundary of Drysdale, Mr Rogers accepted that, in 1980, at the time of the Drysdale Bypass Study, the eastern boundary between agricultural and urban use was in the vicinity of Clarendon Road. At that time, there was no demand for growth in any direction. By 1992, he considered that land east of Clarendon Road could have been marked for future urban growth: 'It might have been balanced with land to the west, but it certainly would have been in the mix'.[23] Absent the Bypass, he considered it more likely that the town would have grown to the east, although it was also possible there would have been two growth fronts. Even after the Jetty Road growth area had been identified for future residential development, Mr Rogers did not rule out the possibility of urban growth to the east. However, he had not undertaken an analysis of the capacity of the Jetty Road growth area to cater for the urban growth of Drysdale.
112 I asked Mr Rogers whether his opinion was that the land east of the town centre, including the Drakes land and the Murradoc land, would have been rezoned for residential use instead of, or as well as, the Jetty Road growth area. He answered that, in the absence of the Bypass, it was likely that development would have gone east rather than west. Both areas were serviceable, the agricultural land to the west was of better quality, and the land to the east was closer to the centre of town. He did not embrace the proposition that the town would have grown to the east in addition to the development of the Jetty Road growth area. A decision was made in the late 1980s and early 1990s about the direction of growth, and his opinion was that the Bypass proposal meant that west was the only available option for growth.
113 Ms Jordan holds a Bachelor of Planning and Design with Honours from the University of Melbourne. She has worked as an urban planner since 1996 in both local government and private practice. Since 2012, she has been the director of her own urban planning practice, Sophie Jordan Consulting Pty Ltd.
114 In November 2017, Ms Jordan was engaged on behalf of the Authority to provide an independent assessment of the strategic planning and development of the Drysdale township, and to consider the extent to which its development had been influenced by the Drysdale Bypass project. She did so in her first report, dated 30 March 2018.
115 Ms Jordan's first report focused on seven key questions, five of which were relevant to the Drakes land and the Murradoc land on the eastern side of the Bypass.[24] Those questions, and a summary of her answers, were as follows.
116 Question 1: When was the Bypass first mooted in the planning history of the region? How has it affected the planning controls for the area?
(a) The Bypass was first proposed in 1975, when the Geelong Regional Planning Scheme was placed on public exhibition, before the preparation of each of the structure plans for Drysdale in 1983, 1992, and 2010:
In examining each of these historical strategic plans it is evident that Bypass has been identified as a settlement boundary to some degree, particularly along the southern and eastern edges of the Drysdale township. To this extent the Bypass has explicitly been referred to as a boundary that will limit "urban" expansion, including residential development.
(b) The pattern of zoning of land immediately around the Bypass suggests that it has had some influence on zoning. Land zoned for rural purposes extended either side of the reservation, particularly to the east. However, the strategic assessment undertaken in each of the structure plans provides clear reasons for the zoning pattern that are unrelated to the Bypass, specifically landscape values, subdivision patterns, and a desire to maintain rural residential land around the more intense development of the town centre. The analysis in each of the structure plans suggests that the agricultural value of land outside the settlement boundary, together with a desire to constrain outward expansion of the township, would have resulted in the vast proportion of that area being within the Farming Zone, had the Bypass not been proposed.
117 Question 2: Identify any growth constraints for development in or around the south and east township boundaries which may include topographical and services constraints?
(a) Irrespective of any physical constraints, the outward growth of Drysdale may have been constrained by a desire to contain development and ensure the township was of an appropriate and sustainable size. Other potential growth constraints are matters of topography, servicing, landscape features, agricultural value, and physical barriers.
(b) The topographical and geological features of land to the south and east were not constraints to development.
(c) Water supply was identified in the 1992 Structure Plan as expensive to provide to the north and east of the town, and a constraint to development in that area. Beyond that, there was no specific information in the 1992 or 2010 Structure Plans about the services available to farming land to the south and east of the town, or any upgrades required.
(d) Land to the east of Martins Road was subject to SLO 13. Any expansion of the township to the east would need to provide for an appropriate interface in terms of density and allotment pattern. It was unlikely that any conventional residential subdivision would be appropriate between Clarendon Road and the western edge of SLO 13 (i.e. Martins Road).
118 Question 4: What has given rise to the rural living and low density residential living areas between Andersons Road and Whitcombes Road?
(a) This question concerned four areas of land immediately west of the Bypass route, as shown on Figure 16.
Figure 16: Extract from Greater Geelong Planning Scheme of the Drysdale township, provided in the report of Sophie Jordan dated 30 March 2018.
Parcel D, identified above in Figure 16, is of particular relevance because it lies to the west of the Drakes land and the Murradoc land, between Portarlington Road, Whitcombes Rod and Murradoc Road. In the mid-1970s, it was zoned Rural and Rural (Farming), in 1981 it was rezoned Rural General Farming and Reserved Residential, in 1988 it was rezoned Rural Residential, and in 2000 it was rezoned Rural Living.
Both the 1992 and the 2010 Structure Plans identified Parcel D as having potential for standard density residential development in the longer term. The only recommendation in 2010 was that Parcel D continue to be reviewed once lot supply within the settlement boundary becomes more scarce. A further reason to retain the existing Rural Living zoning was the high rural landscape value of the northern part of Parcel D, including a stand of mature river red gums that may be the subject of a future vegetation protection overlay.
119 Question 5: How has the Drysdale township boundary evolved?
(a) The Drysdale township structure has been strongly influenced by the original Crown allotment in the 1840s, being the land bounded by Wyndham Street to the north, Jetty Road to the west, Andersons Road to the south and Princess Street to the east - as shown in Figure 17.
Figure 17: Map showing the boundaries of the original 1840s crown allotment for the Drysdale township, provided in the report of Sophie Jordan dated 30 March 2018.
(b) In the last 70 years, the town has expanded outside this allotment. To the north, there was gradual erosion of the urban break between Drysdale and Clifton Springs. The town expanded to the west with development of the Jetty Road growth area commencing in 2009. To the east, the town expanded to accommodate a mix of commercial uses, high and low density residential development, and rural residential land. There was no expansion to the south, with Andersons Road remaining the settlement boundary.
(c) Formal designation of a settlement boundary was first considered as part of the strategic planning that informed the 1983 Structure Plan, for reasons that were not specifically connected to the Bypass. The farming land around the Bypass reservation had the effect of limiting residential expansion, and no additional areas were set aside for residential development. The 1983 Structure Plan did not explicitly seek to use the Bypass as a boundary for the township, although it was acknowledged as a constraint on future development to the east and south.
(d) By 1992, the strategic focus had shifted to accommodating urban growth. Irrespective of the Bypass, there was a clear intention to prioritise residential development of underutilised areas close to the town centre. The 1992 Structure Plan provided significant guidance as to the potential for infill residential development. There was also rezoning to Rural Urban Future Zone on the western side of Portarlington Road at Clifton Springs and the west side of Jetty Road at Drysdale - the beginning of the Jetty Road growth area.
(e) Rezoning for rural residential on the eastern side of the Bypass alignment was not supported in the 1992 Structure Plan, for five reasons:
(f) Continuation of residential growth was a key element of the 2010 Structure Plan. It nominated a clear settlement boundary, with the Bypass providing the eastern and southern edge.[25] The concept of rezoning land outside this boundary for residential use was considered and rejected by the Independent Panel for Amendment C194 in 2010. The settlement boundary was to protect rural land surrounding Drysdale and Clifton Springs from ad hoc conversion to residential activity, and to maintain the character of the rural hinterland. Guidance was provided for infill residential development within the settlement boundary.
120 Question 6: What is the logical shape of a town if you were starting from scratch or with a blank canvas? What would be the shape of the settlement boundary?
(a) In general terms, Drysdale has developed in line with sound planning principles of township development, and the planning objectives of the State planning policy framework. It has retained its town centre as a focus for commercial activities, and has managed to contain its residential land within its defined boundaries. Higher density development has occurred close to the town centre, gradually reducing in density towards the edges of the township. The Jetty Road growth area is the most significant planned expansion to the township for several decades.
(b) In relation to the eastern boundary, it would be unlikely to extend past Martins Road into the area of significant landscape value associated with Murradoc Hill, and it would be preferable to provide some type of buffer or reduced development density adjacent to Martins Road. Clarendon Road would be a logical eastern boundary between Andersons Road and Murradoc Road, and ideally would extend further north to Whitcombes Road. This 'ideal' north-south road could create a logical eastern settlement boundary, a dividing line between farming land to the east and the town centre to the west - as shown in Figure 18.[26]
Figure 18: Map showing potential eastern boundary treatment in an 'ideal' scenario, provided in the report of Sophie Jordan dated 30 March 2018.
(c) The settlement boundary to the west of Drysdale changed significantly in 2008, to accommodate the majority of Drysdale's urban growth. It was identified in the 1983 Structure Plan for 'very long term future growth', partly because it had better potential for servicing, in particular water supply, and partly due to limitations for growth in other directions.
(d) Assuming that the Bypass was not a consideration:
... expansion to the west appears to be logical overall and does represent an ideal scenario for the township structure. Given the population growth anticipated for the two townships and the number of residential lots required to meet this demand, a substantial area is required which could provide residential development together with various supporting services. Development of the land west of Jetty Road has a number of advantages in delivering this including:
(e) The far western edge of the Jetty Road growth area abuts the Farming Zone abruptly. Ideally, the western boundary of the township should incorporate an appropriate transition to the Farming Zone.
121 Ms Jordan prepared a second report dated July 2019, in which she specifically considered the development potential of the Crowes' land. Much of this report repeated what she had said in her first report, and then addressed two further questions concerning the Drakes land and the Murradoc land.
122 Question 7(a) - In the absence of the Bypass, what is the highest and best development potential of the subject properties in the 'before' situation?
(a) The key characteristics of the two properties included that they had been used for open pasture or some other farming activity, and that land to their north, south and east had also been used for farming. Land to the west was used for rural residential purposes, with a more recent commercial precinct along Murradoc Road.
(b) It was possible that some form of residential activity could have incrementally bled east towards Martins Lane, including the Drakes land and the Murradoc land. However, if this was going to happen, it would have occurred before the late 1960s, before the completion of strategic planning work for the town. By the early 1970s, planning policy had halted large scale subdivision of rural areas. Any significant proposal for the conversion of farming or rural land to a residential activity after this time would probably have been resisted by the municipal authority, based on the documented policy guidance.
(c) Successive structure plans have focused standard residential development towards the town centre and to areas where residential activity can be supported or landscape values have been diminished, and have sought to protect the surrounding agricultural landscape:
Even in the absence of the Bypass there is again no reason to believe that this clear policy directive and the identified benefits of a settlement boundary would have been considered any differently. As such an eastern boundary to the settlement would still have been introduced and would most likely have been positioned in the vicinity of the subject properties, aligning with Clarendon [Road]. This is in part due to the significant landscape area (Murradoc Hill) that is further east and the expectation that some form of 'buffer' between the more intensive development of the township and Murradoc Hill would be desirable.
(d) Even if the land had been developed for rural residential use before the 1970s, this would not necessarily have been its highest and best use. Given that both the Drakes land and the Murradoc land, and land to their north, south and east, have been used for farming purposes since Drysdale was settled, it is reasonable to assume that the land has been productive and of agricultural value. In addition, the Farming Zone permits a range of uses other than farming, and the Greater Geelong Planning Scheme supports allowing rural land to remain economically productive. It may be that farming would have been the highest and best use of the land, compared to rural residential. A detailed analysis of agricultural productivity would be required to determine the most productive use of the land, which was beyond the scope of the report.
123 Question 7(b) - In the absence of the Bypass, what is the likelihood of the subject properties being zoned residential (i.e. Rural Living, Low Density Residential or General Residential) or commercial?
(a) Given the area of Rural Living zoned land on the western side of the Drakes land, it is reasonable to expect that in the absence of the Bypass alignment, the Rural Living Zone may have been the most likely zone to have extended further east. If so, the extension would have been limited and may well have stopped around the eastern boundary of the properties. It was unlikely that the Commercial 2 zoned land along Murradoc Road, west of the Murradoc land, would have extended any further east.
(b) Ms Jordan clarified in her oral evidence that, in the absence of the Bypass, she considered the most likely zoning of both the Drakes land and Murradoc land would have been Farming. Her answer to question 7(b) in her second report addressed the most likely alternative zoning of the properties, putting aside Farming.[27]
124 Question 8: It is noted that the land to the west of the Bypass is currently zoned Rural Living.
(a) What is the highest and best development potential of the subject properties?
(b) What are the prospects of the subject properties being rezoned residential (i.e. Rural Living, Low Density Residential or General Residential) or commercial?
The most likely alternative zoning of both properties was Rural Living, although as discussed in answer to question 7(a) it is questionable whether this is the highest and best development potential of both properties.
125 It was highly unlikely that either property would be rezoned from the Farming Zone to any alternative zone. Rezoning would certainly not be supported in the medium term. In her oral evidence in chief, Ms Jordan identified three distinct periods in the planning history of Drysdale. The first was the pre-Bypass period, with development occurring in the 1950s and 1960s through to the late 1970s. The second period commenced in the 1980s, with the formalisation of the Bypass reservation, and continued to the turn of the century. The third and final period commenced in 2000, with the adoption of the new format planning scheme, and has continued up to the present day. After describing these three periods, Ms Jordan identified some foundations of Drysdale that have influenced its shape, independently of the Bypass proposal:
(a) The original town plan has influenced the structure and layout of Drysdale from the beginning.
(b) Early speculative subdivisions in the 1950s and 1960s created some fragmentation of land in parts of the township.
(c) Infill development has been pursued as the most appropriate way to meet future residential demands.
(d) The supply of zoned land has been carefully monitored and assessed by Council throughout, with a view to maintaining a 10-15 year supply of land. Speculative rezoning beyond that 15 years has not been supported.
(e) The demand for rural residential and low density residential land has been met from land available within the township, without much need for expansion. This type of residential development has proceeded with caution, because of its tendency to fragment the town.
(f) Agricultural activity remains a cornerstone of the economy of Drysdale and the broader Bellarine Peninsula. Farming zoned and rural zoned land is considered of great importance and value to the area, and there has been a desire to maintain and protect rural land. It has not been treated as a holding zone waiting to be subdivided.
(g) Landscape values have influenced strategic planning for the Bellarine Peninsula for some time, and have been formally recognised in the last decade.
(h) There has been a consistent and strong policy to consolidate the town, in order to protect farmland and to ensure the sustainable development of the township based on sound town planning principles. A settlement boundary is the most effective tool to reinforce containment. In the absence of the Bypass proposal, the settlement boundary on the east side of the town would have been aligned with Clarendon Road.
126 Ms Jordan explained that these foundations led her to conclude that, in the absence of the Bypass proposal, the subject land would have remained farming land outside the settlement boundary. There was no sound strategic basis to conclude that the township would have expanded to the east beyond the Bypass alignment, while there were a number of factors that maintained growth to the west.
127 In cross-examination, Ms Jordan agreed that the recently adopted Settlement Strategy had no bearing on the likely zoning of the subject land as at the relevant date. It was adopted by the Council in October 2018, after the date of acquisition.
128 Asked about opportunities and constraints that affected the development of Drysdale that were outside the scope of her reports, Ms Jordan identified the extent to which services were and were not available, the viability of agricultural activities, and any geological influences.
129 Ms Jordan agreed that the three strategic plans for Drysdale and Clifton Springs, as well as the 2007 Jetty Road Urban Growth Plan and the 2012 Urban Design Framework, all referred to the Bypass as a boundary to expansion of the town. She also agreed that, with one exception, land to the south and east of that boundary had remained zoned for farming purposes. She accepted that the Bypass had some influence on the development patterns around that part of the township, but emphasised that it was not the only influence. She rejected the suggestion that, in reviewing the strategic planning history, she had simply excised references to the Bypass and assumed that all other things remained the same. Rather, her approach was to balance all of the factors that were opportunities and constraints and make a judgment about their likely influence.
130 Taken to specific opportunities and constraints, Ms Jordan agreed that the topography and geology of the area would not have prevented urban growth to the east of Drysdale, and that agriculturally productive soil did not specifically bar urban development. She acknowledged that the 1983 and 1992 Structure Plans had identified the prime potato farming soil west of Jetty Road, but not the soil profile to the east of the town, as a likely constraint. She agreed that the land parcels to the east of the Bypass reservation were more fragmented than the land holdings in the Jetty Road growth area, but disagreed that made the land to the east unsuitable for agricultural activity.
131 It was put to Ms Jordan that water supply to the north and east of Drysdale was not an insurmountable obstacle to development of land between 80 and 100 metres AHD. She considered that to be beyond her expertise. She understood that gravity fed water supply was an impediment above 80 and 100 metres AHD, but could not comment on whether it was efficient or economic, prohibitively expensive, or impossible, to augment the water supply system. With the exception of costs associated with water supply to the north and east, she agreed that the 1992 Structure Plan did not note servicing of the land to the east as a material constraint to urban growth.
132 She agreed that the Murradoc Hill landscape east of Martins Road, the subject of SLO 13, was not mentioned in either the 1983 or the 1992 Structure Plan. She also agreed that the Murradoc Hill landscape was not as significant a consideration in 1992, as it has been in the last decade. However, she did not accept that the Council would have ignored the landscape value of the area east of Drysdale. While there was no statutory control or planning policy that requires a break or setback between the edge of SLO 13 and residential development, she maintained that a setback was one means of respecting the valued landscape the subject of the overlay. Taken to the Olive Grove rezoning near Portarlington, she accepted that it was an example of residential zoning adjacent to SLO 13, but did not accept it was directly comparable with the land to the east of Drysdale.
133 Ms Jordan did not agree that the 1992 Structure Plan designated infill land between Drysdale and Clifton Springs for residential development because of the constraint of the Bypass to the east. She noted references in the Plan to those areas of land being of value because of their central location and their ability to join Clifton Springs and Drysdale.
134 She accepted that the Bypass alignment was one of five reasons given in the 1992 Structure Plan for not supporting rural residential rezoning to the east. She disagreed that the Drakes land would have been of rural residential character if Council had granted an application by Mr and Mrs Crowe for a permit to build a dwelling on the land. The existence of a dwelling on farming land would not alter the prime agricultural activity conducted on the land.
135 Ms Jordan accepted the general proposition that town boundaries can change to accommodate urban growth. The movement of the Drysdale town boundary to the west of Jetty Road was an example of this occurring. However, her experience is that most municipal authorities are very reluctant to move a boundary, and are very firm on its retention. She disagreed that the only thing standing in the way of an expansion of the town boundary east to Martins Road was the Bypass. It was a very significant factor that there was no need or demand for it to move to provide for additional land.
136 Mr Clarke is also an expert town planner. He received a Bachelor of Town and Regional Planning with Honours from the University of Melbourne in 1982, and has practised in the field of town planning for 37 years. Over that time, he worked as a consultant town planner for various firms, including his own, and was also a sessional member of Planning Panels Victoria for many years. He is currently a director of Matrix Planning Australia Pty Ltd.
137 At the request of the Authority, Mr Clarke provided three reports in relation to compulsory acquisition of land required for the Drysdale Bypass:
(a) His first report, dated November 2016, commented on the highest and best use of the land along the Bypass route in the before and after scenarios, and the impact of the Bypass on the form, structure, and development of Drysdale;
(b) His second report, dated April 2017, addressed a series of more specific questions about the planning history of Drysdale and the evolution of its town boundary; and
(c) His third report, dated January 2019, gave his opinion on the highest and best development potential of the Drakes land and the Murradoc land, in the absence of the Bypass.
138 Mr Clarke's first report contained a thorough but succinct summary of the history of statutory planning controls and strategic planning relevant to Drysdale, and also outlined the relevant policies and controls under the current Greater Geelong Planning Scheme. In relation to the highest and best use of land along the Bypass route, he first sought to identify where the Drysdale township boundary would have been in the absence of the Bypass proposal. This task was made more difficult because, for as long as planning scheme maps have existed for Drysdale, they have shown the Bypass as the southern and eastern township boundary. He considered that, in the absence of the Bypass, the southern township boundary would have been Andersons Road, between Portarlington Road to the west and Clarendon Road to the east. The eastern boundary would have been along Clarendon Road, between Andersons Road to the south and Murradoc Road to the north, and then continuing north in a straight line to Portarlington Road. The alignment is shown in Figure 19.
Figure 19: Map showing township boundary and zoning in the absence of the Bypass, provided in the report of Andrew Clark dated November 2016.
139 He explained why he considered that the eastern boundary of Drysdale would have been aligned with Clarendon Road:
Clarendon Road is the most prominent north-south feature for defining the eastern township boundary. As a result, some of the lots now in the Farming Zone and outside of the boundary defined by the By-Pass to the south-east of the bend in the By-Pass would have been included inside the boundary.
Clarendon Road only extends to Murradoc Road. It is unlikely that north of Murradoc Road the township boundary would have extended as far eastwards to the next most prominent feature to the east, Martins Road, because at all times there was an abundance of Rural Living zoned land. More likely the township boundary would have followed cadastral boundaries generally along the continued northern alignment of Clarendon Road to Portarlington Road.
The 1983 (at page 7) and 1992 (at pages 23-24) Structure Plans not only identified the By-Pass alignment to the east of the township as the township boundary but also identified a topographical constraint of servicing the area east of the township with water.
...
Successive Drysdale/Clifton [Springs] Structure Plans have identified the Jetty Road area to the west of Drysdale/Clifton Springs as the preferred township growth area. Putting aside the By-Pass there were other factors that still would have excluded expansion to the south and east in preference to the west. In the absence of the By-Pass the Jetty Road area would have still been the preferred growth area of Drysdale/Clifton Springs.
140 Mr Clarke noted that the Drysdale Bypass route had been known since at least 1975, and had been taken into account in the successive structure plans for Drysdale/Clifton Springs. The Bypass had helped to more clearly define the township boundary to the south and east throughout that time. It had not impeded the growth of the town to the west, and had been a supporting reason for rezonings on the southern and eastern sides of town, in particular infill rural-residential, rural living and residential zonings and the eastern extension of the Commercial 2 Zone along Murradoc Road.
141 In April 2017, Mr Clarke prepared a second report, addressing the same questions that were answered in Ms Jordan's first report.[28] The first question concerned how the Bypass had affected the planning controls for the area. Mr Clarke commented:
It appears that the By-Pass was originally located so as to literally by-pass Drysdale to its south and east and so as not to physically divide the township, leaving some areas between the then existing township and the By-Pass to be subsequently developed as infill urban development up to the alignment of the By-Pass. The By-Pass was apparently intended when originally mooted to be the township boundary, but specific reference to its township boundary defining role is only evident in later strategic planning documents. Therefore, the By-Pass, at least to the west of its north-south alignment has enabled some areas to be rezoned to urban or low density residential zones which might not otherwise have been rezoned in its absence.
142 The second question asked him to identify any growth constraints for development around the south and east township boundaries. Mr Clarke noted no obvious topographic or water features either side of the Bypass route that would influence urban growth. The 1983 Structure Plan had identified a constraint of 'difficulty of water provision' to the east of the township, above 80 metres AHD. He noted that the 80 metre AHD contour occurred both sides of the Bypass, including within the township area.
143 The next relevant question was what had given rise to the rural living and low density residential living areas between Andersons Road and Whitcombes Road. Mr Clarke noted that these areas had in 1975 and 1981 generally been zoned for farming. He considered that they had undoubtedly been rezoned to rural living and low density residential because the eastern boundary of the township was defined by the Bypass route.
144 Mr Clarke acknowledged that the Drysdale township boundary to the south and east had been the Drysdale Bypass ever since planning scheme maps had existed for the town, starting in 1975. The northern boundary was formed by the coast and a creek, and the western boundary from 1975 was Jetty Road, until 1991, when the area west of Jetty Road was rezoned Rural Future Urban. He confirmed the opinion given in his first report that, in the absence of the Bypass proposal, the settlement boundary to the south and east of Drysdale would have been along Andersons Road to the south, and aligned with Clarendon Road to the east.
145 The third report prepared by Mr Clarke concerned the highest and best development potential of the Drakes land and the Murradoc land in the absence of the Drysdale Bypass. Mr Clarke again relied on the opinion, expressed in his first report, that the eastern township boundary would have been aligned with Clarendon Road - as shown in Figure 19.[29] On that basis, he concluded that the likely zoning of both the Drakes land and the Murradoc land would have been Farming Zone, and the likely highest and best use would have been agriculture. He did not consider there would have been any prospect of the land being rezoned to a rural living, residential, or commercial zone, as it would have been outside the urban growth boundary. In his oral evidence in chief, Mr Clarke highlighted the significance of water provision as a constraint to urban development to the east of the town. He explained that he understood the 1992 Structure Plan to say that, generally speaking, the entire study area around Drysdale and Clifton Springs could be serviced with water. However, it went on to state that reticulated water could be provided economically to the west, while it would be expensive to provide to the east.
146 Mr Clarke commented on Mr Rogers' opinion that, absent the Bypass, Drysdale would have grown in a more balanced fashion around the town centre, extending east to Martins Road. Mr Clarke's difficulty with that opinion was that townships do not necessarily grow in a balanced manner; rather, their growth is affected by constraints. In the case of Drysdale, water supply had historically been identified as a constraint to growth to the east.
147 He also commented that, given the land that became available in the Jetty Road urban growth area, there would have been no need to extend Drysdale to the east out to Martins Road in order to ensure 15 years' supply of residential land. He added that there were no identifiable features between Clarendon Road and Martins Road that would form a logical and defensible town boundary.
148 In cross-examination, Mr Clarke agreed that the Bypass route had formed a significant element of every one of the strategic planning documents he had considered in relation to Drysdale and Clifton Springs, and was shown on every planning scheme map he had looked at. It formed an informal town boundary until 2010, when it became the formal town boundary under the 2010 Structure Plan.
149 Shown an aerial photograph of Drysdale and Clifton Springs taken in 1990, Mr Clarke agreed that Martins Road was at least an equally prominent north-south road feature as Clarendon Road. He confirmed that Clarendon Road was only a partial north-south feature, extending north only to Murradoc Road, while Martins Road runs all the way north to Whitcombes Road.
150 Mr Clarke agreed that the two remnant parcels of land in the Farming Zone inside the eastern township boundary both had dwellings on them and appeared to be used for rural living purposes. He explained that he had referred to that farming zoned land as an adjunct to his argument that there was substantial rural living and low density residential zoned land in the vicinity of the north-south Bypass route.
151 He rejected the suggestion that, in the absence of the Bypass, there would have been consideration in the 1980s and 1990s of future urban development to the east along Murradoc Road, up to Martins Road. He pointed out that the Commercial 2 zone on Murradoc Road did not extend up to the Bypass until recently, and had been extended that far east because the Bypass was regarded as the town boundary. He said there had never been any suggestion that it would go further east, and that strip commercial development through farming land would not have been appropriate.
152 Taken to the water servicing constraint identified in the 1983 and 1992 Structure Plans, and the fact that the 80 metre AHD contour occurs on either side of the Bypass, Mr Clarke explained that he had attempted to interpret what the structure plans said about that constraint. Whether water supply to the east of the town was a serious constraint to urban development was an engineering question that he could not answer. What was significant was that the structure plans said it would have been expensive, which was relevant as a planning consideration.
153 Mr Clarke confirmed that his thesis was that the Jetty Road urban growth area would have been chosen as the urban growth front, even in the absence of the Bypass. The proximity of the subject land to the town centre was a consideration that could have been taken into account, although it did not alter his thesis.
154 Finally, Mr Clarke agreed that he had not mentioned SLO 13 in his report, and had not considered it in reaching his opinion.
155 Mr and Mrs Crowe submitted that I should find that, in the absence of the Bypass, there was no material impediment to urban growth occurring to the east of Drysdale up to Martins Road. In those circumstances, their land would have been identified for urban uses and, before 2018, would have been rezoned to accommodate those uses. They relied on the opinion of Mr Rogers and his central conclusion that, absent the Bypass proposal, Drysdale would have developed in a more balanced way around the town centre, and would have extended east to Martins Road. His opinion was that the transition to urban development of that area would have occurred from the time of the 1992 Structure Plan, when the Council would have looked east instead of west for growth.
156 They pointed to the three key reasons identified by Mr Rogers for this conclusion, being proximity to the town centre, the absence of constraints or impediments to development to the east, and the role of the eastern gateway into Drysdale:
(a) Mr Rogers considered that proximity to the commercial centre of Drysdale was an equal, if not greater, driver of development location than proximity to the coast. Land east of the Bypass route, extending to Martins Road, had better access to the centre of town than land west of Jetty Road. Given the superior proximity of area to the town centre, there was potential to develop it out to Martins Road, and Clarendon Road was not the logical eastern boundary. Both Ms Jordan and Mr Clarke accepted that proximity to the town centre was a relevant consideration.
(b) Mr Rogers was firmly of the view that there were no constraints to growth to the east, other than the proposed Bypass. There was little difference between the quality of the farming land to the east of town and the farming land set aside for the Jetty Road urban growth area. He considered that there were no impediments to servicing the land to the east, and that water supply was available throughout the whole study area for the 1992 Structure Plan. He accepted that the 1992 Structure Plan perceived that it would be more costly to supply water to the east, but said that there would also have been an expense in moving west.
(c) He was also influenced by the view that further urban development to the east along Murradoc Road would have enhanced the entry point to Drysdale from that direction. A graduated increase in density would have been preferable to the present abrupt change from farming land to large lot commercial and industrial properties.
157 The applicants argued that Mr Rogers' opinion should be accepted in preference to the opinions of Ms Jordan and Mr Clarke, who were of the view that, in the absence of the Bypass, the eastern town boundary would have followed the alignment of Clarendon Road. They emphasised that both Ms Jordan and Mr Clarke accepted that the Bypass alignment had influenced the pattern of development of Drysdale back to 1975, and that it was necessary to consider how Drysdale might have developed, had the Bypass not existed. This exercise involved more than just disregarding references in strategic documents to the Bypass; it was necessary to interrogate where the growth of Drysdale would have gone in the absence of the Bypass. They said it was a fallacy to argue that there was no scope to go east because the Jetty Road growth area met the demand for residential land for the foreseeable future. They pointed out that Ms Jordan had accepted that, if the Council had determined that Drysdale should grow to the east, rather than the west, it could have shifted the urban boundary further east, rather than west.
158 A key question was whether water supply was a constraint on growth to the east of Drysdale. The applicants said that Ms Jordan had conceded that the 1992 Structure Plan did not identify it as a material constraint, apart from the cost associated with supplying water to the east. They pointed out that Mr Clarke had noted that the extent of the constraint was unknown, and that the 80 metre AHD contour occurred on both sides of the Bypass route, including within the township area. Against that background, they submitted that it was telling that Mr Clarke was not prepared to accept that water supply was not a serious constraint to growth to the east. He also had focused on the cost, rather than the viability of extending the water supply to other areas within the 80 metre AHD contour. The applicants submitted that, while water supply might have been more expensive to the east, it was a matter readily capable of resolution, including through the mechanism of a development contributions plan. On that basis, the cost of water supply was not a serious constraint.
159 Mr and Mrs Crowe argued that SLO 13 had no bearing on decisions made up to 1992 about the direction of Drysdale's growth. It was not mentioned in either the 1983 or 1992 Structure Plans, and was not a matter considered by Mr Clarke.
160 The policy of protecting agricultural land was said to be a furphy. The recognised quality of agricultural land to the west was obviously not a constraint to development in that direction. The quality of the farm land to the east was never identified in the same terms as a growth constraint. Similarly, fragmentation of land parcels to the east was not a bar to residential growth.
161 The Authority submitted that the evidence of Ms Jordan and Mr Clarke should be preferred, because their opinions engaged with the relevant strategic planning history of Drysdale, had regard to well-accepted town planning principles, and were underpinned by sound and detailed reasoning. It said that these features were absent from the evidence of Mr Rogers, which was said to be deficient in a number of respects.
162 The Authority's starting point was that the Bypass route represented the town boundary, the separation of urban areas from agricultural land. It then highlighted the significance of the water servicing constraint to the east of Drysdale, identified in both the 1983 and 1992 Structure Plans. It rejected the contention that water supply issues could have been addressed in future, arguing that it was clear from the 1983 and 1992 Structure Plans that the planning authority regarded it as a constraint to easterly expansion.
163 The main contention of the Authority, based on the evidence of both Ms Jordan and Mr Clarke, was that the Jetty Road growth area to the west was more attractive than growth to the east, for a number of reasons:[30]
(a) The west did not have water constraints of the kind identified in the 1982 and 1992 Structure Plans. It was more efficient and cost effective [for] water supply to be provided to the west compared to the east, which was a product of topography and the fact that land to the east was a much higher undulating landscape but lower lying to the west.
(b) The west had larger lot holdings (i.e. less properties to assemble across a much greater area), whereas land to the east was fragmented and large parcels of rural living and low density land would have had to be rezoned which make it more complicated for a wholesale rezoning.
(c) The west could accommodate population growth anticipated for both Drysdale and Clifton Springs.
(d) The west is proximate to regional open spaces being Lake Lorne and the McLeods Waterhole precinct (known as the Drysdale Recreation Reserve) [immediately] next to Jetty Rd.
(e) The west is proximate to the Clifton Springs primary school established in the 1980s, which is located on the western side of Jetty Rd.
(f) The west had potential for pedestrian linkages with Griggs Creek through to the foreshore.
(g) The west has a high level of amenity and good access to services.
(h) The west had a broader range of services and was proximate to the Drysdale town centre.
(i) The west had direct connection with existing residential development on the east side of Jetty Rd, a significant portion of which was already at a conventional density and all for residential purposes.
(j) Residential development on the west was expected to have minimal adverse impact on the environment.
(k) The west was not constrained by any SLO of the kind to the east at Murradoc Hill. As Ms Jordan said, SLO13 would (in the absence of the Bypass), have constrained a growth front beyond Clarendon Rd to the east - that significant landscape overlay was documented in 2006 and would have been well known when the Jetty Road Urban Growth Plan was prepared in 2017/8. Even prior to 2006, the planning authority would not have ignored the landscape value of Murradoc Hill when considering an application for rezoning of areas around it. Though the Acquired Land was not in the SLO itself, in Ms Jordan's experience, any application for rezoning would take into account the interface with an SLO, with a preference for a buffer to apply between the SLO and urban development.
(l) The west was a substantial long-term growth front that exceeded what would have been possible or provided to the east.
(m) While the west was an area with prime potato farming soil, it was not in fact being used for that purpose when being developed.
164 Once it was accepted that the town would have grown to the west in the absence of the Bypass, the Authority submitted that there was nothing to suggest that it would also have grown to the east. The Jetty Road growth area met the demand for residential land well into the future, and there was no need to expand to the east. To the extent that Mr Rogers had suggested that there would have been two urban growth fronts, this evidence was said to be confusing, unreliable, and lacking analytical rigour.
165 The Authority made a wholesale attack on Mr Rogers' evidence, only two aspects of which I found to be of real assistance. First, the Authority argued that Mr Rogers failed to address in his reports matters that were unfavourable to the applicants, in particular the constraint of water supply east of the town. Second, it pointed out that he had prepared his first report without considering a number of key planning documents, most notably the 1983 Structure Plan.
166 Both parties went to considerable effort in their written and oral submissions to set out the relevant planning history, and the conclusions that they said should be drawn from that history. At times, it appeared that I was being invited to form my own opinions based on the planning history of Drysdale. To the extent that invitation was extended, I have resisted it. As noted at the outset, the separate questions are to be answered by reference to expert opinion evidence, rather than by forming my own inexpert opinion.[31]
167 I have concluded that the opinions of Ms Jordan and Mr Clarke are to be preferred to the opinion of Mr Rogers. There are a number of reasons for that conclusion.
168 First, both Ms Jordan and Mr Clarke undertook more comprehensive surveys of the planning history of Drysdale and the surrounding area than did Mr Rogers. His initial report began with the 1992 Structure Plan, by which time the Bypass route had long been determined and the area west of Jetty Road had already been earmarked for future urban growth. This necessarily limited Mr Rogers' reimagining of the development and town boundary of Drysdale in the absence of the Bypass. I was not convinced that he did so by reference to the strategic planning considerations that were in play in the critical years before the adoption of the 1992 Structure Plan.
169 It was not until just before the trial that Mr Rogers reviewed some of the earlier documents, in particular the 1980 and 1981 reports that investigated the alternative alignments for the Bypass, and the 1982 public discussion document that preceded the 1983 Structure Plan. His letter of 2 November 2020 merely listed these documents, noted 'various other documents' in the court books, and stated that there was nothing in them that caused him to change his opinion. There was no analysis of the additional documents, and no attempt to identify the strategic planning considerations that influenced decisions about the development of Drysdale during the 1980s. I was not persuaded that these documents informed Mr Rogers' opinion.
170 By contrast, Ms Jordan went right back to the original Crown allotment, the 1960 Interim Development Order, and the consideration given in the early 1980s to the preferable alignment for the Bypass. Similarly, Mr Clarke began with the 1960 Interim Development Order. Because their examination of Drysdale's planning history commenced before the Bypass was proposed, Ms Jordan and Mr Clarke were much better placed to imagine 'the logical shape of the town if you were starting from scratch, or with a blank canvas'.[32] In addition, they both identified a number of strategic planning considerations that were influential at the time the Bypass was first proposed, and when its alignment was under investigation. For example, Ms Jordan emphasised that, from the 1970s onwards, there had been a commitment to maintaining rural spaces and agricultural uses, and a corresponding resistance to extending urban boundaries on the Bellarine Peninsula. They were both able to explain, by reference to contemporaneous planning policy, why Clarendon Road would have been the eastern boundary of Drysdale from the 1980s onwards, had the Bypass not been proposed.
171 It follows that I do not accept the Crowes' submission that Ms Jordan and Mr Clarke simply disregarded all mentions of the Bypass in the strategic planning documents. In my view, both Ms Jordan and Mr Clarke asked where the growth of Drysdale would have gone in the absence of the Bypass, and their answers were based firmly on the planning history of the town and the surrounding region.
172 Second, and relatedly, Mr Rogers did not engage at all with the selection of the Bypass alignment in the early 1980s, and the planning considerations that informed it. It is apparent from the 1980 Drysdale Bypass Study and the 1981 Location Investigation that considerable care was taken to identify the settlement boundary to the south and east of Drysdale, allowing for the future growth of the town while protecting agricultural land.[33] As Mr Clarke pointed out in his second report, the Bypass was located so as to bypass Drysdale, leaving some areas between the town and the Bypass alignment for future infill development.[34] Ms Jordan made a similar observation in her first report.[35] In other words, the Bypass alignment was chosen because it represented the logical southern and eastern boundary of Drysdale, allowing for some future growth within that boundary. Mr Rogers' opinion was formed without reference to this very significant decision, or the reasons for it.
173 Third, I do not accept Mr Rogers' view that the difficulty of water provision to the east of Drysdale was not a relevant growth constraint. He explained that he did not consider it relevant because serviceability was no longer seen as a constraint in the 1992 and 2010 Structure Plans. I did not find that explanation convincing, because it did not accord with my reading of the 1992 Structure Plan. Read as a whole, the 1992 Structure Plan identified that water supply to the east of the town would be expensive to provide and would be a constraint to future growth, while land to the west could be economically provided with reticulated water. More simply, the whole area could have been serviced, but it would be less costly to extend water supply to the west. I accept the opinion of Ms Jordan and Mr Clarke that, leaving aside the Bypass, this was a reason why Drysdale would have grown to the west rather than to the east.
174 The applicants submitted that this constraint on growth to the east could have been overcome, including by a development contribution plan. This was not a matter relied on by Mr Rogers in his reports or his oral evidence. That aside, the submission could not overcome the fact that water supply to the east was regarded by planning authorities as a constraint at the time when they were making decisions about the direction of Drysdale's future growth. The 1983 Structure Plan identified the west as the logical direction for future growth, in part because of the difficulty of water provision to the east.[36] At the same time, the Geelong Region Rural Residential Living Strategy made a direct link between development and the provision of reticulated water, and noted that the State Rivers and Water Supply Commission was refusing consent for subdivisions if reticulated water could not be provided at reasonable cost.[37] By 1988, the land to the west of Jetty Road had been designated as an urban growth area. It was rezoned as Rural Future Urban in June 1991. By the time the 1992 Structure Plan was adopted, it was already clear that Drysdale would expand to the west, and the farm land that was to become the Jetty Road growth area had already been identified and rezoned in anticipation of future growth. The westerly direction of growth was determined well before 1995, when the Planning and Environment Act 1987 (Vic) was amended to provide for development contributions.
175 Fourth, the opinion of all three planners was that Drysdale would have grown in only one direction in the absence of the Bypass. Mr Rogers' opinion was that it would have grown to the east, while Ms Jordan and Mr Clarke considered that it would still have grown in a westerly direction. Mr Rogers thought it possible that there might have been two growth fronts, in that Drysdale might also have grown west if the development potential to the east was not sufficient, although he had not done any analysis of whether enough land was available east of Drysdale to cater for the town's projected growth.[38] However, he did not embrace the notion that the town would have grown to the east in addition to the development of the Jetty Road growth area.[39] It was clearly the case that the Jetty Road growth area, together with other infill development opportunities, provided enough land for Drysdale's foreseeable future growth.[40]
176 It follows that once the decision had been taken to rezone the Jetty Road growth area for future urban development, there was no longer any prospect that Drysdale would also grow to the east. That decision had already been made by 1992, when Mr Rogers' analysis began. Neither his reports nor his oral evidence paid sufficient attention to the point in time at which Drysdale's growth front was chosen, or to the consequences of that choice for growth in other directions. By contrast, both Ms Jordan and Mr Rogers addressed the development of the town's boundary over time,[41] and Ms Jordan also highlighted the reluctance of planning authorities to move a settlement boundary.[42]
177 Fifth, I do not accept Mr Rogers' thesis that Drysdale was more likely to grow eastwards because of the agricultural land to the west was more valuable than to the east. This appears to have been something of an afterthought, having not featured in his initial report of March 2018, or in the joint statement of planners. In his letter of 2 November 2020, written just before the trial, Mr Rogers first noted that the 2007 Rural Land Use Strategy designated the Jetty Road growth area as high quality agricultural land, and most of the Murradoc land as moderate quality. He did not attempt to demonstrate that this consideration was influential in the critical period before 1992, and I am not persuaded that it was. To the contrary, the Jetty Road growth area was rezoned Rural Future Urban in 1991, despite the 1983 and 1992 Structure Plans noting that 'the only likely constraint' on growth in that direction was that the area was prime potato growing land.
178 For completeness, I add that I am not persuaded that either SLO 13 or the Murradoc Hill landscape influenced the decision to extend Drysdale to the west rather than to the east. That decision was taken before 1992, while SLO 13 was first proposed in 2006, and was not included in the Greater Geelong Planning Scheme until 2011. Ms Jordan did not point to any consideration of the Murradoc Hill landscape in the 1980 and 1991 Bypass investigations, or in the 1983 and 1992 Structure Plans, and did not contend that it played any particular role in defining the settlement boundary, choosing the Bypass alignment, or the decision to rezone land west of Jetty Road for future urban growth. I do not need to determine whether, since 2011, SLO 13 has been an additional constraint on development to the east of Drysdale.
179 That does not weaken Ms Jordan's opinion that the eastern boundary of Drysdale would have aligned with Clarendon Road, which was based on a number of other considerations that were operative before 1992. The most significant of these were the policies of consolidating and containing Drysdale within its settlement boundary, and protecting agricultural land from further subdivision and residential development, as well as the expense of supplying reticulated water to the east.
180 In conclusion, I accept the opinions of Ms Jordan and Mr Clarke that, in the absence of the proposed Bypass, the eastern boundary of Drysdale would have been aligned with Clarendon Road, and the Drakes land and the Murradoc land would have been in the Farming Zone at the time of acquisition in 2018. I do not accept Mr Rogers' opinion that the land would have been zoned for residential use. Because the opinions of Ms Jordan and Mr Clarke were clearly preferable to that of Mr Rogers, there is no doubt or obscurity in the evidence that might be resolved in favour of Mr and Mrs Crowe.[43] I find on the balance of probabilities that the Drakes land and the Murradoc land would have been in the Farming Zone at the acquisition dates.
181 The Crowes' case was that, but for the Bypass, their land would have been rezoned for residential use long before the dates of acquisition. They did not put a case that there was any prospect of the land being rezoned at some future time, and there was no evidence to support that conclusion.
182 I will make an order in each proceeding, answering the separate questions to the effect that the subject land would have been in the Farming Zone at the date of acquisition, and that there was no prospect of it being rezoned for residential use.
183 The parties should confer and seek to agree on draft orders that reflect this outcome, and in relation to the costs of the hearing and determination of the separate questions. If necessary, I will hear the parties at a mutually convenient time on the form of the orders to be made and the question of costs.
[1] The Roads Corporation, also known as VicRoads, was abolished on 1 January 2020 and its relevant functions were transferred to a corporation sole titled 'Head, Transport for Victoria'. On 24 February 2020, Clayton JR made orders in both proceedings amending the name of the respondent to Head, Transport for Victoria.
[2] Land Acquisition and Compensation Act 1986 (Vic), s 41(1)(a) and s 40 - definition of 'market value'.
[3] Valuation of Land Act 1960 (Vic), s 5A(3)(a); ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, [40], citing Commonwealth Custodial Services Ltd v Valuer-General (NSW) (2006) 148 LGERA 38, [15].
[4] Streetworks Pty Ltd v Linking Melbourne Authority (2011) 182 LGERA 293, [10].
[5] Rigby v Secretary to the Department of Sustainability and Environment [2012] VSC 427, [3].
[7] Streetworks, [15], citing March v E and MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515-517 (Mason CJ).
[8] (2011) 182 LGERA 293, [17].
[9] McCann v Roads Corporation [2011] VSC 96, [46].
[12] Rigby, [28]-[29], citing Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Ltd [1947] HCA 10; (1947) 74 CLR 358, 373-4 (Dixon J) and McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238, 244-5.
[13] Greater Geelong Planning Scheme as at 27 July 2000, cl 21.08 - Urban Growth.
[15] Greater Geelong Planning Scheme, cl 21.02.
[16] Greater Geelong Planning Scheme, cl 21.06-1.
[17] Greater Geelong Planning Scheme, cl 21.06-2.
[18] Greater Geelong Planning Scheme, cl 21.14-2.
[19] Greater Geelong Planning Scheme, cl 21.14-3.
[20] Greater Geelong Planning Scheme, cl 21.14-3.
[21] Australian Height Datum, the official national vertical datum for Australia, refers to height above approximate mean sea level.
[23] Transcript, 5 November 2020, 218:6-8.
[24] Question 3 concerned rural living zone allotments south of the Bellarine Rail Trail between Jetty Road and Princess Street, and Question 7 concerned the evolution of the Civic Precinct south of the Bypass.
[26] Ms Jordan noted in her oral evidence that the red dotted line was intended to follow the alignment of Clarendon Road. See Transcript, 5 November 2020, 242:31-243:1.
[27] Transcript, 6 November 2020, 340:12-341:12.
[30] Authority's Outline of Closing Submissions dated 23 November 2020, [20].
[32] Question 6 addressed in Ms Jordan's first report and Mr Clarke's second report.
[38] Transcript, 5 November 2020, 218:15-23, 219:9-220:26.
[39] Transcript, 5 November 2020, 224:25-225:1, 226:24-227:31.
Crowe
Head, Transport for Victoria [2021] VSC 180
(2008) 20 VR 447
(2006) 148 LGERA 38
(2011) 182 LGERA 293
(1991) 171 CLR 506
(1947) 74 CLR 358
(1995) 87 LGERA 238