Council explained that each of these projects is critical to the ongoing development of the key development areas and that a future acquisition would be required. The key projects which the PAO will ultimately facilitate will lead to the timely delivery and completion of three key growth areas within the Latrobe region.

• is supported by, and implements, the relevant sections of the Planning Policy Framework
• is consistent with the relevant Ministerial Directions and Practice Notes
• is well founded and strategically justified
• should proceed subject to addressing the more specific issues raised in submissions.

3.1 Application of the Public Acquisition Overlay

The issue is whether the proposed location of the PAO is appropriate and justified.

A number of submitters sought changes to the location, or extent of the PAO.

Submitter 4 sought the relocation of the PAO from a position which, as proposed, dissects through the land "creating an awkward and unusable rear lot with no road access". It submitted:

• the proposed location of the drainage infrastructure (subject to the PAO) appears to have been established using the location of the existing drain without sufficient consideration of land ownership or property boundaries
• this has resulted in an awkward small land parcel without road access
• the drainage reserve serves a "precinct-wide function, benefiting other landowners while disproportionately affecting us".

Figure 4 Submitter 4 land (red arrow) showing proposed drainage flow and PAO line and preferred drainage flow and PAO line (hand drawn in green)

Council did not support moving the PAO as sought and highlighted that doing so would be inconsistent with the background strategic work, principally the Morwell DP and Morwell DCP. Council submitted:

• the changes sought would impact six other properties, three of which are not presently subject to the proposed PAO and have not been notified in relation to the Amendment
• no evidence had been produced to justify the relocation of the drainage asset.

Council indicated that the changes proposed by submitter 4 had been discussed with its own engineers, and also the West Gippsland Catchment Management Authority. It referred to the following advice received:

The proposed route is still possible as the correct slope could in theory be achieved, however it would be achieved at a much higher cost due to significantly increased earthworks required.

The scope of earthworks required would be significantly increased because the channel would not sit at the bottom of the valley but on the side. This means the valley bottom would need to be filled in (west of the new alignment) and additional cutting would be needed on the east side of the alignment to grade the current ground level down to the channel. Additional fill and cut works are required to ensure all stormwater can drain by gravity to the drainage reserve. The change would significantly increase the scope of works and result in the project to affecting more landowners than it currently does. Because the cost of each DCP project is shared by the precinct, the increased cost of the project would see the DCP levy increase too.

The West Gippsland Catchment Management Authority are open to considering the alternative alignment but would require a new stormwater study and flood study to identify the impacts of the design.

Submitter 5 wanted to extend the area of the PAO so that it aligned with the northern boundary of two land parcels. It submitted that increasing the size of the PAO would increase the flexibility to design the relevant stormwater asset and subdivision layout. Council indicated that the PAO will not prevent the consideration of alternative designs for the development contributions infrastructure which do not align the PAO land area and there is a legislative process in place for this situation.

The Amendment applies the PAO in accordance with the relevant Precinct Structure Plan, Development Plans and Development Contributions Plans. The Panel has already concluded that this approach is strategically justified and sees no reason to depart from this position.

More specifically, the Amendment as it relates to submissions 4 and 5, seeks to reserve land which has been identified in the Morwell DP for drainage infrastructure.

The land appears as 'Drainage Reserve (Encumbered)' on the maps within the Morwell DP. Page 3 of the Morwell DP states that the purpose of this development plan is to:

... provide direction to ensure a logical subdivision pattern across separate allotments to achieve an outcome that is best for the growth area as a whole.

The plan identifies where roads, parks, wetlands and physical infrastructure should be located, without prejudice. That is, the Development Plan is based on best practice design that is responsive to topography, drainage, vegetation and the location of key land uses, to ensure land is reserve for these purposes and not lost in favour of maximising individual Development interests.

The changes sought by submitters 4 and 5 would result in an outcome that is inconsistent with the strategic intent identified in the Morwell DP. Equally, as Council identified, the changes proposed would have consequential impacts on other land parcels and those land holders have not had an opportunity to comment on the changes sought.

In relation to submitter 4, changing the location of the PAO and consequently the drainage infrastructure, would have significant flow on effects. While the location of the PAO is not ideal given it intersects the property (rather than following the title boundary), changing its location at this point in time would have significant implications for the drainage infrastructure which is planned to be built on the land. No evidence was produced to indicate whether a relocated drainage reserve is possible or what the potential costs might be. The proposed drainage infrastructure is located to follow the existing natural drainage line on the land. Indeed, page 9 of the Morwell DP acknowledges that one of the constraints facing the DP is the natural location of the main north-south drainage line and the impact on development potential for affected properties. The subdivision layout has been appropriately managed to reflect this location.

While the land remains undeveloped, there are options open to both the landowner and Council when the acquisition occurs, such as acquiring the drainage reserve as an easement on title, rather than a reserve on title. Council would equally need to ensure that a physical crossing of the drainage infrastructure is provided so the landowner's smaller parcel of land does not end up landlocked in the event it remains undeveloped[1].

In relation to submitter 5, it is not ideal to apply a PAO to a larger parcel of land than what is technically required. Part 5 of the LAC Act allows a landowner to be compensated for the PAO which has been applied to their land and then later removed with no acquisition. The compensation payable would reflect the landowners restricted ability to use their land while the PAO is in place. The Panel therefore agrees with Council that it would be irresponsible for Council to apply the PAO to land that is unlikely to be acquired. If additional land is required, there is still flexibility in the acquisition process under the LAC Act for this to occur.

The Panel concludes the location and extent of the PAO as exhibited is appropriate and justified and should not be amended.

Two submitters were concerned the application of the PAO would interfere with or delay a permit holder's ability to come to their own commercial arrangements to acquire land for development contribution projects.

Council confirmed that it is still Council's intention that the infrastructure items are delivered by developers/landowners and application of the PAO will not interfere with this process. Council explained the PAO was being applied to ensure that a "fair and prudent process" to acquire land is in place should private arrangements not materialise. The Panel concurs with this approach.

Submitters 4 and 5 took issue with the age of the Morwell DP, Morwell DCP and a relevant Drainage Study, and suggested the PAO areas should be revisited as a result. Council indicated that while the Morwell DP and DCP were first adopted by Council in 2010, the Morwell DP is intended to provide for approximately 25 years of land supply and therefore has a design life of at least 25 years. Council said it reviews all strategic planning documents every ten years to identify changes in policy and if intended outcomes are being achieved. Council advised the:

• Morwell DP and Morwell DCP were last reviewed in 2016/2017
• updates were adopted in 2018
• next ten year review will be due around 2028.

• the Morwell DP and Morwell DCP and the relevant Drainage Study were of an appropriate age to be used as background documents to this Amendment
• it was satisfied the Morwell DP is still relevant to sufficiently guide orderly development
• no evidence had been produced to demonstrate the drainage study was no longer relevant or its assumptions were outdated.

The Panel agrees and sees no reason to delay the application of the PAO in such circumstances.

3i - Attachment 2 to 24 February 2025 Council Minutes

[1] As required by section 43(2) of the LAC Act.