For Department of Planning and Community Development

Mr Alan Freitag, Manager, Planning and Development Group, Gippsland

1. The matters I must determine in these cases turn on issues of principle. They rely on the very basics of the objectives of planning in Victoria which are set out in the Planning and Environment Act 1987. The very first objective is "to provide for the fair, orderly, economic and sustainable use, and development of land"[1]. Another objective is: "to balance the present and future interests of all Victorians"[2]
2. I am faced with a situation where I must determine what is fair and how to balance the interests of the landowner/applicants in this case and the broader interests of all Victorians in providing for the protection of natural resources and the maintenance of ecological processes, which is an objective of planning in Victoria.[3] In simple terms, it is a case of planning controls versus planning policy, or at least some aspects of planning policy. The planning policy in question is meritorious and deserves to be given effect to. But the Planning and Environment Act 1987 establishes a planning framework. A key objective of the planning framework established by the Act is:

to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land.[4]

1. A further key objective is: "to ensure sound, strategic planning and coordinated action at State, regional and municipal levels"[5]. The principle way of achieving this is through the system of planning schemes, which the Act establishes.
2. The system of planning schemes in Victoria is intended to be strategic and policy based. A planning scheme is a statutory document which sets out objectives, policies and provisions relating to the use, development, protection and conservation of land in the area to which it applies. A planning scheme regulates the use and development of land through planning provisions to achieve those objectives and policies.[6] Zones, overlays and other controls in the planning scheme are intended to be selected and applied as a means of implementing the strategic planning, land use and development objectives and strategies of the planning authority.[7] Policy has two roles in the planning framework: it provides the basis upon which land will be included in zones and overlays; and it should guide decisions made under those zones and overlays.
3. The critical issue in the present case is that the zones and overlays affecting the land in question no longer reflect broad current policy an strategic thinking. Policy has evolved since the planning controls were introduced. As yet, the planning scheme has not been amended to reflect this change in policy. The question that arises is whether permit applications, which are entirely in accordance with the zone and overlay provisions applying to the land, should be refused on the basis that they do not accord with policy.

1. Each of these seven applications is against failure by the council to grant a dwelling. All involve land included within a Low Density Residential Zone, a Restructure Overlay and Environmental Significance Overlay (schedule 1) under the Wellington Planning Scheme. The subject land in each case comprises a restructure lot on a restructure plan included in the schedule to the Restructure Overlay. This and other land within the various restructure plans under the Restructure Overlay are part of an extensive area some 28 kilometres in length comprising old and inappropriate subdivisions between the Ninety Mile Beach and the Gippsland Lakes. Each of the sites is located at least 6 kilometres from the centre of Golden Beach between Lake Reeve and Bass Strait (Ninety Mile Beach); is heavily vegetated and beyond the reach of reticulated services. There is no suggestion though that the development proposed for each lot cannot adequately manage on-site effluent disposal.
2. Two similar applications have been the subject of previous Tribunal decisions in Harpur v Wellington SC[8] and Dawe v Wellington SC[9]. In each case the Tribunal granted a permit for a dwelling.
3. The purpose of this hearing is to consider the threshold issue of whether relevant coastal policy in the planning scheme weighs against the grant of planning permits for the developments proposed. This issue is common to each application and is also likely to arise in the context of similar permit applications in the future.
4. A specific issue that I will need to consider in these applications involves the weight to be placed on approved restructure plans under the Restructure Overlay when development accords with a restructure plan and does not require a permit under the zone provisions, but may be contrary to other aspects of state and local policy. The Department of Planning and Community Development (former DSE) was invited to make a submission in respect of this and any other matters pertaining to these applications or their wider implications.

1. In the Shire of Wellington, there are presently around 11,800 freehold allotments located along a 28 kilometre section of the coast adjacent to the Ninety Mile Beach, between Paradise Beach and The Honeysuckles. The vast majority of these allotments are not serviced and/or are located within areas subject to regular/seasonal flooding. They were created between 1955 and 1969 when there were no planning controls or policies in place. Lots of around 600 square metres were created on the understanding that normal utility services, such as water, sewerage and electricity, would be provided.
2. The problems associated with residential development lacking reticulated services in a highly fragile coastal and estuarine environment was recognised by the Town and Country Planning Board in 1973. In 1978, the State Government initiated a study which resulted in a series of restructure plans to re-parcel the lots into larger land areas capable of treating and disposing domestic waste within their boundaries. These restructure plans were adopted in February 1979 and remain as the restructure plans contained in the schedule to the Restructure Overlay in the current planning scheme.
3. In January 1982, planning control for the Ninety Mile Beach area passed to the then Shire of Rosedale and a buy back program was initiated involving lots deemed to be environmentally unstable and unsuitable for any form of development. Not a lot of progress has been made. Currently:
   • 15% (around 1,600 lots) have been restructured;
   • About 35% (4,300 lots) are subject to flooding;
   • 2% (300 lots) are subject to a stalled buy back scheme as government funding is no longer available; and
   • 48% (5,600 lots) have not yet been restructured.

1. The subject land and most of the other land adjacent to the Ninety Mile Beach is included in the Low Density Residential Zone. The Rural Conservation Zone applies to land fronting Lake Reeve.[10]
2. "Dwelling" is a section 1 use in the Low Density Residential Zone subject to conditions. It is common ground that the conditions can be met in respect of these applications. Consequently, no permit for use or development is required under the zone provisions.

1. Under the Restructure Overlay, a permit is required for dwellings and other buildings. A permit must be in accordance with a restructure plan for the land listed in a schedule to this overlay. [11] The subject land in each application constitutes a restructure lot on a restructure plan listed in the schedule.

1. The land is in a Environmental Significance Overlay Schedule 1 - Coastal and Gippsland Lakes environs (ESO1). A permit is required to construct a building or construct or carry out works. The statement of environmental significance for ESO1 is as follows:

The Ninety Mile Beach and Gippsland Lakes and their environs are some of the most significant environmental, landscape, and recreational areas within the State of Victoria.

The coast and lakes systems comprise easily disturbed ecosystems susceptible to soil erosion, ground and surface water pollution, and habitat disturbance. In particular, areas which have been developed as coastal settlements and towns along the Ninety Mile Beach are beginning to cause significant environmental management problems, including loss of water and soil quality, as well as loss of native vegetation.

There are 11,200 subdivided lots along the Ninety Mile Beach between Paradise Beach and the Honeysuckles, east of Seaspray. These lots occur both on the sand dunes of the Ninety Mile Beach and on the adjacent sandy soils. None of the lots is connected to reticulated water or sewerage systems. Investigations have revealed evidence of groundwater contamination at Loch Sport. Development has been encouraged to occur within the township areas of Paradise Beach, Golden Beach and at the Honeysuckles.

There are significant environmental issues in this area, including water quality, landscape, protection of primary and secondary sand dunes, flooding, protection of vegetation habitat, impacts on neighbouring wetlands and coastal parks. Coastal and estuarine systems are vulnerable to human development.

1. The environmental objective to be achieved is as follows:

• To ensure that the development of land is compatible with the environmentally sensitive coastal area, including the Gippsland Lakes.
• To conserve and enhance the environmental quality of the coastal area.
• To protect and enhance the natural beauty of the coastal landscape.
• To protect and enhance the visual amenity and landscape of the coastal area.
• To minimise the risk of erosion, pollution, and destruction by fire.
• To minimise the impact of human activities on the ecological values of the coastal and lakes environments

1. Under the decision guidelines of ESO1, the responsible authority must consider clause 21.04 with respect to settlement in coastal areas and whether the proposal addresses a range of matters relating to the form of development, infrastructure and environment protection.[12] Clause 21.04 of the MSS in the Wellington Planning Scheme includes a range of settlement objectives and strategies for coastal areas. I will not repeat them all here, but one of the strategies most relevant to these applications is:
   • Facilitate the restructuring of old and inappropriate coastal subdivisions as opportunities arise and where the development of such lots will not result in significant environmental impacts.

1. The council identified the key relevant policy for the purposes of this threshold issue as clause 15.08 of the State Planning Policy Framework (SPPF) relating to coastal areas. It includes policy requirements which require consideration of the Victorian Coastal Strategy 2002. It provides relevantly as follows (with emphasis added by the council):

Land use and development planning should be coordinated with the requirements of the Coastal Management Act 1995 to:

• Provide clear direction for the future sustainable use of the coast, including the marine environment, for recreation, conservation, tourism, commerce and similar uses in appropriate areas.
• Protect and maintain areas of environmental significance.
• Identify suitable areas and opportunities for improved facilities.

Decision-making by planning authorities and responsible authorities should be consistent with the following hierarchy of principles for coastal planning and management as set out in the Victorian Coastal Strategy 2002, which are:

1. Provide for the protection of significant environmental features.

2. Ensure the sustainable use of natural coastal resources.

1. Undertake integrated planning and provide direction for the future.

When the above principles have been considered and addressed:

1. Facilitate suitable development on the coast within existing modified and resilient environments where the demand for services in evident and requires management.

• Identify a clear settlement boundary around coastal settlements to ensure that growth in coastal areas is planned and coastal values protected. Where no settlement boundary is identified, the extent of a settlement is defined by the extent of existing urban zoned land and any land identified on a plan in the planning scheme for future urban settlement.
• Direct residential and other urban development and infrastructure within defined settlement boundaries of existing settlements that are capable of accommodating growth.
• Encourage urban renewal and redevelopment opportunities within existing settlements to reduce the demand for urban sprawl.
• Avoid linear urban sprawl along the coastal edge and ribbon development within rural landscapes and preserve areas between settlements for non-urban use.
• Ensure development respects the character of coastal settlements.
• Ensure development is sensitively sited and designed.
• Protect identified visually significant landscapes, views and vistas in coastal areas.
• Protect non-urban areas for their visual landscape, environment, agricultural and recreational qualities.
• Retain the existing subdivision patterns and non-urban uses between settlements.
• Encourage opportunities to restructure old and inappropriate subdivisions to reduce development impacts on the environment.
• Identify and avoid development in areas susceptible to flooding (both river and coastal inundation), landslip, erosion, coastal acid sulfate soils, wildfire or geotechnical risk.
• Avoid development within the primary sand dunes and in low lying coastal areas.
• Avoid disturbance of coastal acid sulfate soils.
• Encourage revegetation of cleared land abutting coastal reserves.
• Encourage ecological sustainable coastal and marine tourism in suitable locations.
• Protect Aboriginal sites and places from inappropriate development.

1. There is relevant local policy to be found within the MSS (clauses 21.04 and 21.05).
2. Considerable strategic planning work has been undertaken by the council and in conjunction with DSE, East Gippsland Shire Council and the Victorian Coastal Board. This strategic planning work includes:
   • Wellington Coast Subdivision Strategy. Council adopted Option 4 (Nodal Urban) as identified in the strategy in October 2005. the Nodal Urban option seeks to restrict development outside 'Nodes' which surround the townships of Golden Beach, Paradise Beach, The Honeysuckles and Seaspray, and return the areas in between to either public land or management as large rural conservation lots.
   • Coastal Spaces Recommendations April 2006 (DSE) which recommends with respect to Gippsland old and inappropriate subdivisions continuing to work and support Wellington Shire Council in progressing the Wellington Coastal Strategy recommendations.[13]
   • Coastal Towns Design Framework, which was completed in March 2007. Particular project objectives are to assist the implementation of the Victorian Coastal Strategy and the integrated planning for Gippsland Coastal Action Plan; and the provision of detailed design guidance and planning provisions for the settlements and development pressure areas.
3. Volume 3 of the Coastal Towns Design Framework is an urban design framework for Golden Beach/Paradise Beach. One of the plans (Plan 4) includes a proposed town boundary. Recently (in August 2007) the council resolved to amend the planning scheme to implement the urban design framework in Volume 3 of the Coastal's Town Design Framework. It also wrote to the Minister for Planning requesting an interim planning scheme amendment to place "a temporary moratorium on development in areas where development rights are likely to be negatively impacted by implementation of the adopted Wellington Coast Subdivision Strategy". I am not aware that any decision has been made regarding this.

1. The old and inappropriate subdivisions along the Gippsland Lakes have been recognised as an intractable planning problem for over 30 years. Attempts have been made to lessen the potential impact of residential development through the preparation of restructure plans. The current suite of planning controls represents an implementation of these planning strategies. More recent strategic planning work has suggested an alternative set of strategies. I accept that this recent work provides an appropriate strategic basis for amending the planning scheme. However, until this occurs, I must apply the planning scheme controls as they presently exist and I must interpret planning policy in accordance with the current planning framework.
2. The council submits that development on this land should not be permitted. If development was to proliferate in accordance with the zone and restructure plans, it would result in low density, ribbon residential development on consolidated lots extending for a distance of more than 20 kilometres. This would be contrary to the overarching principles of the Victorian Coastal Strategy in clause 15.08. The council relied heavily on those elements of clause 15.08 previously highlighted. It was submitted that policy dictates that a clear settlement boundary should be identified around coastal settlements; that linear urban sprawl and ribbon development along the coastal edge within rural landscapes should be avoided; and areas between settlements be preserved for non urban use. In its most recent strategic work (Coastal Towns Design Framework) a settlement boundary has been identified around Golden Beach/Paradise Beach and the subject land lies outside it. These permit applications are therefore contrary to policy and should be refused. Effectively, the council submits that residential development between nodes should be prohibited because it is contrary to policy. This is notwithstanding inclusion of the land in a residential zone and the restructure plans under the Restructure Overlay. The council argues that the controls in the planning scheme are not keeping pace with changes in planning policy. It is therefore appropriate to use the discretion under the Environmental Significance Overlay to give effect to the policy for coastal areas contained in the SPPF to confine residential development to coastal settlements within defined settlement boundaries.
3. In my view, the council's arguments place too much weight on what is a very general policy intended to have application throughout Victoria in coastal areas and fails to recognise more specific policy of greater direct relevance. They confuse residential development with residential use, and attempt to apply policy as a substitute for the planning controls rather than as a tool to guide the exercise of discretion under those controls.

1. Clause 15.08 is a general policy applicable to coastal areas in the whole of Victoria. Whilst an application of general policy may well lead to rejection of a specific proposal (as occurred in the case of Beacon Point Holdings v Colac Otway SC[14]), it is not the role of a general policy such as this to prohibit all proposals of a certain type which are entirely in accordance with existing zone and overlay controls. Such a policy may well justify a change in planning controls, but it cannot operate as a blanket prohibition or substitution for existing planning controls. This is not the role of policy and especially not in circumstances where the policy is far from explicit in terms of its application to the specific location in question.
2. In my view, the policy statements relied upon by the council in clause 15.08 do not necessarily lead to the outcome advocated by the council.
3. For example, with respect to the policy relating to a settlement boundary around coastal settlements, there is no settlement boundary at present around any settlement nodes along the Ninety Mile Beach. No weight can be given to the proposed settlement boundary in the Coastal Towns Design Framework Volume 3. At this stage, the Framework is nothing more than a proposal. It cannot even be considered to be a seriously entertained planning proposal. Whilst the council may be thinking about an amendment based on the Coastal Towns Design Framework, an amendment has not yet been placed on exhibition or gone through any public participation process, let alone been adopted.[15] In my view, it is not even relevant to consider attempting to implement such a boundary for reasons articulated by Justice Morris in Stella and Partners v Whittlesea CC[16]:

[14] Although it will usually be desirable that planning policies and guidelines be included in planning schemes, a planning policy or guideline, adopted by a responsible authority but not forming part of the scheme, will still be a relevant consideration if the circumstances require. If there was any doubt about this proposition, it has been removed by the recent decision of the Court of Appeal in Whitehorse City Council v Golden Ridge Investments Pty Ltd. Usually a policy will be "adopted" by a resolution of the responsible authority, which will be publicly minuted, but a policy will be adopted if it can be said that as a matter of fact it has been adopted.

[15] The weight to be given to an adopted policy will depend on the circumstances. One circumstance may be that the policy has not been included in the scheme as, generally speaking, greater weight should be given to policies included in a scheme. Another circumstance may be that the policy has not been subject to a detailed and fair public participation process, akin to that involved in making a planning scheme amendment. In some cases the policy may be outdated or have been overtaken by a policy in the scheme. Sometimes the policy may be simply unwise and, for that reason, deserve little weight. Of course, if a policy is inconsistent with the planning scheme it should not be given effect to.

1. This is a situation where there is no identified settlement boundary. In such circumstances, clause 15.08-2 provides that: "The extent of a settlement is defined by the extent of existing urban zoned land." All the subject land and other relevant land along the Ninety Mile Beach is included in an existing urban zone, namely the Low Density Residential Zone. Thus for the purpose of interpreting this aspect of policy, the land must be regarded as land suitable for settlement. By definition therefore, this is a settlement area even though it may offend other aspects of the policy to avoid linear urban sprawl along the coastal edge and ribbon development within rural landscapes.
2. In this situation, one aspect of policy must be balanced against other aspects including the policy also in clause 15.08 to: "Encourage opportunities to restructure old and inappropriate subdivisions to reduce development impacts on the environment".
3. The policies in clause 15.08 must be viewed holistically. In great part they are directed at planning by planning authorities. They talk about providing clear direction for the future sustainable use of the coast; undertaking integrated planning and providing direction for the future; and identifying a clear settlement boundary around coastal settlements. These are all actions that need to be undertaken by a council acting as a planning authority and embodied in planning controls. When a council is acting as a responsible authority, the policies are more specific: they talk about the extent of settlement being defined by the extent of existing urban zoned land; directing residential and other urban development within defined settlement boundaries of existing settlements; ensuring development is sensitively sited and designed; and encouraging opportunities to restructure old and inappropriate subdivisions to reduce development impacts on the environment. None of the current applications offend against policies in clause 15.08 as they are relevant to decision making by a responsible authority.
4. Equally, there is considerable local policy within the MSS policy to guide the council in its role as a planning authority, but when acting as a responsible authority there is a very specific policy to:

Facilitate the restructuring of old and inappropriate coastal subdivisions as opportunities arise and where development of such lots will not result in significant environment impacts.[17]

1. In my view, with such specific direction given at both a State and local level as to how these old and inappropriate subdivisions along the Ninety Mile Beach are to be treated, it would not be fair to ignore such policy or to ignore the planning controls, which have been included in the planning scheme to implement such policy.
2. Apart from anything else, this would be contrary to section 7(4) of the Act, which relevantly provides as follows:

7(4) If there appears to be an inconsistency between different provisions of a planning scheme -

(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and

(ii) a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme.

1. The purpose of the Restructure Overlay in the planning scheme is to identify old and inappropriate subdivisions which are to be restructured; and to preserve and enhance the amenity of the area and reduce the environmental impacts of dwellings and other development. When read in conjunction with the purpose of the Low Density Residential Zone, which is to provide for low density residential development on lots which, in the absence of reticulated sewerage, can treat and retain wastewater, it is evident that both this zone and this overlay have been applied as means of implementing specific policies about old and inappropriate subdivisions.
2. It may well be that the council, as a planning authority, no longer considers that the Low Density Residential Zone and the restructure plans under the Restructure Overlay are adequate to protect the environment and other important attributes of this coastal area. If that is the case, then the answer lies in changing the planning controls. But until the controls are changed, land owners are entitled to rely upon the planning scheme provisions and to assume that the application of zones and overlays do reflect the strategic planning, land use and development objectives and strategies of the planning authority as required by the Planning and Environment Act 1987.[18] In my view, it would be unfair and arbitrary for a responsible authority to disregard the zone and relevant overlays applying to land and, based on selected policy and ignoring other more specific policy, attempt to prohibit use and development of broad areas of land contrary to the purpose of both zone and overlay without amending the planning scheme.
3. I consider this would be contrary to the first objective of planning in Victoria, which is "to provide for the fair, orderly and economic and sustainable use, and development of land"[19].

Ambit of discretion under the Environmental Significance Overlay

1. The Environmental Significance Overlay does not control use, only development. ESO1 applies to the areas of old and inappropriate subdivisions along the Ninety Mile Beach. It applies not only to land in the Low Density Residential Zone and the Restructure Overlay, but to other land which is even more sensitive and less suitable for development that has been included in the Rural Conservation Zone. It also applies to some pockets of Business 1 Zone land and Public Use Zone land. Each of these zones has quite different use and development provisions. For example, dwelling is a section 1 use in the Low Density Residential Zone but a section 2 (permit required) use in the Rural Conservation Zone. Thus discretion under the Environmental Significance Overlay will need to be exercised in different contexts and different physical environments.
2. It is in the context of considering current permit applications under the Environmental Significance Overlay that the council says permits should not be granted. However, it does not rely on the details of each development proposal or each parcel of land, but on a matter of general principle. It would not matter whether the permit applications were for these specific restructure lots or any other restructure lots. As a matter of principle, the council submits that the provisions of the Environmental Significance Overlay dictates that no permits should be granted for residential development on any of the old and inappropriate subdivisions lying between the nodes identified in the Wellington Coast Subdivision Strategy.
3. In my view, the council is confusing residential development with residential use. It is trying to use an overlay which controls development to control use. It cannot do this. Any application for development under the Environmental Significance Overlay must be considered in the context of the objectives of the overlay and relevant decision guidelines, and the exercise of discretion must be guided by the purpose for which the discretion was conferred.[20]
4. The decision guidelines in ESO1 are all focussed on the design and location of development with respect to its immediate surrounds, on infrastructure associated with development and measures to protect vegetation and protect pollution.
5. The purpose of the Environmental Significance Overlay is:

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

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

To ensure that development is compatible with identified environmental values.

1. The first purpose is couched in general terms and refers to the policy frameworks of the planning scheme. However, it is a well established principle of planning law that where criteria to guide decisions are expressed in broad terms, they must be interpreted by reference to the purpose for which the discretion was conferred.
2. The council has relied upon the policy in clause 15.08 about providing clear settlement boundaries around coastal settlements and avoiding linear urban sprawl along the coastal edge and ribbon development within rural landscapes, to justify rejecting a permit for development under the Environmental Significance Overlay. The policies relied upon are policies relating to settlement and use of land for residential purposes. They are not policies directly relevant to the exercise of discretion under the Environmental Significance Overlay, which are concerned with the siting and design of specific development on specific land and ensuring that the development is compatible with the environmental objectives set out in ESO1. In my view, to rely upon such policy relating to settlement and residential use generally would be to exercise a discretion conferred by ESO1 for a purpose other than that for which the discretion was conferred. This would be an error of law.

1. In the case of Park v Macedon Ranges SC[21] the Tribunal dealt with an application for a dwelling in a water supply catchment on land which was a lot on a restructure plan under the Restructure Overlay. Senior Member Liston found that were it not for the Restructure Overlay, it was likely that a permit would not have been granted. However, the fact that the land was a restructure lot and affected by a Restructure Overlay under the planning scheme, created a difference in circumstance which warranted a different approach to the assessment of the application. The difference related to the reasonable expectations of the applicant. He held that, "some meaning has to be given to the fact that the land is affected by a Restructure Overlay and the purpose to be achieved by the restructure plan which forms part of the overlay"[22]
2. Senior Member Liston considered the history of the restructure of this old and inappropriate subdivision, in the context of identifying that was a fair balance between competing interests. He said:

[15] The Pine Acres Estate was clearly a residential subdivision. The restructure plan produces a lower density outcome, but is nevertheless a plan for residential estate. I think it is reasonable to assume that the restructure plan was an attempt to reconcile the historic subdivision of the land, with then more current perceptions of orderly planning and land capability. It may be the case that if we were restructuring the Pine Acres Estate in 2005, the result would be an even lower density outcome having regard to our greater concern in respect of the density of development within water supply catchments. The fact of the matter is that this subdivision was restructured in the 1970's and that this planning process is reflected in the current planning scheme provisions.

[16] The subject land originally comprised of lots 21 to 24 of the Pine Acres Estate. These lots were consolidated, in accordance with the structure plan, in October 2003. Notwithstanding the zoning of the land, I think that in this context the Parks' could reasonably expect to be able to develop the land for the purpose of a dwelling.

[17] This type of case raises very complex issues in relation to the balance which should be struck between the public interest, and that of individual land owners. I consider that an important factor in striking this balance, is a consideration of what it is the planning scheme can be said to imply about reasonable use of the land. In this case I think that the planning scheme implies that the land is to be used for a residential purpose, and this is a factor which favours the grant of a permit. ....

1. The situation faced by the Tribunal in Macedon Ranges in Parks case is not dissimilar to the situation in the present case along he Ninety Mile Beach. In both cases, the inappropriateness of the subdivisions were recognised back in the 1970s and restructure plans prepared as a means of reducing potential adverse environmental effects were development to be permitted on each individual lot. Today, the restructure outcome may be different. We have knowledge about the potential harmful effects of development and waste disposal on water resources and in extremely sensitive locations. Planning authorities should not be reluctant to act upon new evidence and learn from experience. It is quite appropriate that they be willing to revisit restructure plans prepared in the past in light of advances in knowledge. But to be fair to the people who have relied upon those restructure plans and the planning controls in the planning scheme, the process needs to be transparent. If the expectations created by a restructure plan under a Restructure Overlay are to be changed, then they ought to be changed by amendment to the planning scheme not by relying on the selective application of policy in the consideration of individual permit applications.

1. In Dawe v Wellington SC[23], Member Naylor's conclusion was as follows:

[46] I acknowledge the Council's concern about the granting of a permit for a dwelling on this site, in an area along the Ninety Mile Beach where there has long been a desire to minimise the impact of development upon the lake and coastal environs. However, the site is zoned Low Density Residential and the size of the site is in accordance with the Restructure Overlay plan. In light of these circumstances, there is no doubt the site has development potential. The intentions of the Council to undertake further strategic work to focus development opportunities along the Ninety Mile Beach into particular locations is admirable, but ... the existing planning policies in the Planning Scheme retain a recognition of the potential for development to continue to occur subject to the Restructure and Environment Significance Overlays. ...

1. Similar sentiments were expressed by Member Hewet in Harper v Wellington SC[24]. My views are the same.
2. A general application of the principles in the Victorian Coastal Strategy, clause 15.08 of the SPPF and recent strategic planning studies for the Ninety Mile Beach area may provide a sound strategic basis for reviewing existing restructure plans and amending the planning scheme. However, until that occurs, the existing policy framework and planning controls support, as a matter of principle, the grant of planning permits in each of these cases.
3. In reaching this conclusion, I have not considered the site specific characteristics of the land or the specific development proposals. My conclusion is one of principle. The detailed consideration of the permit applications must be the subject of a further hearing. This was foreshadowed in my order dated 13 July 2007. I will make directions to reconstitute the Tribunal to hear and determine the planning merits of each individual application for review.

[1] Section 4(1)(a) Planning and Environment Act 1987

[2] Section 4(1)(g) Planning and Environment Act 1987

[3] Section 4(1)(b) Planning and Environment Act 1987

[4] Section 4(2)(b) Planning and Environment Act 1987

[5] Section 4(2)(a) Planning and Environment Act 1987

[6] Using Victoria's planning system (Department of Infrastructure) chapter 1, page 1

[7] See section 12A(3) of the Planning and Environment Act 1987

[8] [2007] VCAT 180

[9] [2006] VCAT 2394

[10] Land in the Rural Conservation Zone which is included in Schedule 1 to the Environmental Significance Overlay - Coastal and Gippsland Lakes environs, has a minimum subdivision area of 100 hectares. Dwelling is a Section 2 use.

[12] See Clause 4.0 Schedule 1 to the Environmental Significance Overlay

[13] Coastal Spaces - Recommendations Report April 2006, Department of Sustainability and Environment, page 33 recommended action A13.

[14] [2005] VCAT 2871

[15] Clause 84B (2)(g) of the Planning and Environment Act 1987 provides that the Tribunal must, where appropriate, have regard to any adopted, but not approved, amendment to a planning scheme.

[16] [2005] VCAT 1825

[17] Clause 21.04, Settlement - Coastal areas, Wellington Planning Scheme.

[18] See section 4(2)(b) and section 12A(3) of the Planning and Environment Act 1987

[19] Section 4(1)(a) of the Planning and Environment Act 1987

[20] National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592; Shalit and Faine v Jackson Clement Burrows [2002] VSC 528

[21] [2005] VCAT 1306

[22] [2005] VCAT 1306 at [14]

[23] [2006] VCAT 2394

[24] [2007] VCAT 180