• whether the zone applied to the land is appropriate.
• what action, if any is needed to address the situation.

Council provided the following background on the subject land:

The subject land was originally part of Crown Allotment 12, Parish of Angahook and was the last allotment transferred from Volume 5030 Folio 1005895, becoming Volume 8414 Fol 056 on 3 April 1963 when it was transferred to Francis and Agnes Lynch by Instrument B630196.

On 15 July 1963, the subject land (still incorporating CA12E) was transferred to John O'Donohue and Peter O'Donohue by Instrument B703082. It was then gifted it to the Society for Jesus in Australia Limited (SJAL) on 31 July 1963 by Instrument B7154010.

• 1960s: Zoned Reserve - Recreation under the Barrabool Planning Scheme.
• 1980s: Translated to Public Park / Reserved Land.
• 2000: Translated into the modern PCRZ in the Surf Coast Planning Scheme.

The Anglesea Structure Plan 2012 described the land in the following way:

A large parcel of privately owned land bordered by Harvey Street, Great Ocean Road and Melba Parade is zoned PCRZ. The land is undeveloped and used by the public as quasi open space, but the zoning is inappropriate given its private ownership. The land should be rezoned to a more appropriate zone that reflects the private ownership but also limits development given the environmental and landscape qualities and constraints of the land

Action 0.1 of the Anglesea Structure Plan contained the following recommendation for Planning Scheme changes:

Rezone land at 16-20 Harvey Street from PCRZ to a more appropriate zone that reflects its private ownership as well as the environmental constraints

Council acknowledged the inappropriateness of a public land zone on privately owned land but submitted that the historic zoning appeared to be deliberate decision. However, limited records prevented a conclusive determination of whether this was the case. Council added that the Anglesea Structure Plan 2012 recognised that the PCRZ was inappropriate and recommended rezoning the land to one that "reflects private ownership while limiting development due to environmental and landscape constraints."

Council referred to the Review which sets out its priorities for the next four years which are significant strategic undertakings dealing with land supply, housing targets and other obligations. It submitted that this:

...work will not prevent Council from meeting its obligations in reviewing and maintaining the scheme; however, with finite resources, there is little capacity for significant new projects that do not result in a significant community benefit.

Council advised that the subject land was fully covered by the Bushfire Management Overlay and was a Landscape Type 4 area which is deemed to be an extreme bushfire risk location and unsuitable for urban growth. It added the subject land's proximity to the Otway National Park "posed a catastrophic threat to both lives and property." Council supported correcting the zoning anomaly where it:

• is of community benefit
• does not increase the development potential of the land
• is proportionate to the site's environmental and bushfire constraints
• occurs with the cooperation of the landowner, which has not been forthcoming to date.

Council submitted the Amendment is not the appropriate vehicle for resolving zoning anomalies, and Clause 74.02 should only contain a concise list of strategic work items, not administrative corrections. It added that the Panel's task is not to determine the appropriate zoning for 16-20 Harvey Street, but rather whether the Amendment should be changed to reference the correction of zoning anomalies at Clause 74.02.

Council perspective was while the PCRZ is an anomaly:

• rezoning that increases development potential would not constitute a mere 'correction' but rather a strategic rezoning, which is outside the scope of the Amendment
• including the anomaly in Clause 74.02 would incorrectly frame it as strategic work rather than an administrative correction
• Clause 74.02 should not be used to advance site‑specific proposals, particularly where broader township planning work is intended to address neighbourhood character and risk‑mitigation issues.

Council concluded that the subject land's bushfire context, topography and vegetation, potential slope stability considerations, landscape sensitivity on the Great Ocean Road and cultural heritage sensitivity all point to the need for robust investigations before contemplating any zone that increases development potential. Nevertheless, Council agreed that work could be undertaken in the next 12 to 24 months.

SJAL submitted that the PCRZ was applied to the land in error and the zone only should apply to public land because it prohibits almost all private use or development unless carried out by a public land manager. It explained this does not exist for this land and as a consequence, the land is effectively sterilised, with almost all use and development prohibited. In considered the zoning is inconsistent with the Ministerial Direction: The Form and Content of Planning Schemes.

SJAL stated the Review recommended as further strategic work with the highest priority:

Review the planning controls for each coastal township from Anglesea to Lorne to ensure that the best suite of controls has been applied to achieve the identified character for each coastal township and the preferred form of housing while managing bushfire risk.

In its original submission, SJAL requested Clause 74.02 be revised to add:

All current zoning anomalies in Surf Coast Planning Scheme be identified and rectified prior to introducing the revised planning controls for each coastal township so that the optimum suite of controls are introduced.

SJAL submitted that to satisfy Council's obligations under section 12B(4) of the PE Act to keep the Planning Scheme up to date, the Amendment should be changed to address the anomalous zoning of the SJAL land by including it in a residential zone rather than the Rural Conservation Zone proposed by Council.

Mr Glossop gave evidence that the PCRZ at 16-20 Harvey Street was the result of a historic zoning translation error, not a deliberate planning strategy because when the Victorian planning schemes were translated in 2000. He added the land's reservation status was incorrectly carried over into the PCRZ, which is a public land zone intended for Crown or public authority ownership; not privately held land.

Mr Glossop identified the following elements as relevant in influencing the selection of appropriate planning controls:

• Strategic settlement policy identifies Anglesea as a coastal township within a defined settlement boundary, reinforced by the Anglesea Framework Plan. The site is located inside this boundary and is surrounded by residentially zoned land.
• The Anglesea Structure Plan 2012 identifies the site as being inappropriately zoned and recommended a short-term action to rezone the land to reflect private ownership and environmental constraints.
• Housing pressure, limited infill opportunities and the permanent settlement boundary around Torquay further heighten the importance of appropriately zoning well‑located residential land within the township.
• Environmental and other constraints including bushfire risk, vegetation, slope, biodiversity, cultural heritage sensitivity, and access would need detailed assessment but do not in themselves preclude development which may be managed through the application of appropriate overlay controls.

Regarding the appropriate zone for 16-20 Harvey Street, he concluded:

...final zone selection would be derived from the investigations that I foreshadow above, which will give a better picture of the developability of the site. It seems to me though that the site could accommodate at least some residential land uses and it offers a good opportunity to contribute some well located, local, infill housing.

Mr Glossop stated that Council should not be bound to consider all anomalies at this time, a view agreed by Council. Nevertheless, he concluded that the matter could be resolved by inserting the following provision in Clause 74.02:

Rezone the 16-20 Harvey Street, Anglesea to an appropriate residential zone that makes efficient use of the land and reflects its location within the Anglesea settlement boundary and apply any appropriate overlay.

Both Council and SJAL agreed that the PCRZ zone applied to the land is an anomaly and should be corrected. However, their views diverged on how and when this correction would take place but, in its closing, Council agreed that it could be within the next 12 to 24 months.

The Panel acknowledges that Council has a significant body of strategic work to undertake which it is prioritising. However, this issue was identified around 14 years ago in the Anglesea Structure Plan 2012 and the Panel accepts the evidence of Mr Glossop and agrees with the SJAL submission that applying the PCRZ is inconsistent with the Ministerial Direction: the Form and Content of Planning Schemes and consequently inconsistent with the planning authority's obligations listed in section 12B of the PE Act. In the Panel's view, the matter needs to be resolved in a reasonable timeframe which, to date, has not occurred.

The Panel accepts that correcting this anomalous zoning within 12 to 24 months is an appropriate time frame because of the site assessment, evaluation and background work which both Council and Mr Glossop acknowledged would be required. Mr Glossop recommended that a residential zone be identified, Council's preferred options which did "not increase the development potential of the land."

In the Panel's view, both these options are premature and pre-empt the outcome of the work required for a full evaluation and assessment of 16-20 Harvey Street. The subject land has a number of challenges including a significant escarpment as well as potential issues with land instability, flora and fauna, access, slope, cultural heritage and bushfire management. These need to be investigated and assessed before a rational decision on what is an appropriate zone for the land can be made.

In his evidence, Mr Glossop said that that planning scheme provisions often nominate a land use outcome for land designated for investigation. The Panel agrees with that observation, but this is not one of those instances where it is appropriate. As discussed above, this land has a number of challenges which may explain its lack of development and initial reservation.

The Panel considers it appropriate to include a strategy in Clause 74.02 to rezone 16-20 Harvey Street. This is far from a simple rezoning. While the Panel Supports Mr Glossop's proposal to include a provision in Clause 74.02 identifying the rezoning the land as future strategic work, it does not support nominating a residential zone as the outcome nor reflecting the location in the Anglesea settlement boundary. Instead, the following should be added to Clause 74.02.

Rezone the land at 16-20 Harvey Street, Anglesea to an appropriate zone and apply any appropriate overlay within 1 to 2 years.

• The PCRZ applied to 16-20 Harvey Street, Anglesea is not appropriate.
• The Amendment should include a strategy in Clause 74.02 to rezone the land and apply any appropriate overlay within 1 to 2 years.

1. Amend Clause 74.02 to include the following strategy:

Rezone 16-20 Harvey Street, Anglesea to an appropriate zone and apply any appropriate overlay.

Council response to request for additional planning information

Post exhibition version of Clauses 37.01s3, 42.01s2, 42.03s6 and 66.04s6

Appendix B Panel recommended version of Clause 42.01 Environmental Significance Overlay - Schedule 2

SCHEDULE 2 TO CLAUSE 42.01 ENVIRONMENTAL SIGNIFICANCE OVERLAY

The sites, comprising parts of water supply catchment areas of the Pennyroyal Creek, Matthews Creek, Dewings Creek, St George River, Erskine River and Painkalac Creek, are used for the provision of water for domestic use and are also declared as special water supply catchments under Schedule 5 of the Catchment and Land Protection Act 1994.

The cumulative impacts of development within the catchments has the potential to gradually diminish the quality and quantity of water in the special water supply catchments. Diminished water quality also increases the risk to human health and the health of all communities that rely on water from the catchments.

The protection, restoration and enhancement of all waterways (as defined by section 3 of the Water Act 1989) within the catchments is an essential component in ensuring the continued availability of water quantity and quality while also protecting the health of the natural resources and environmental systems within the catchments.

To protect and maintain water quality and water yields in the catchments.

To ensure that subdivision, land focus on the long term protection of the natural resources and environmental systems in the catchment by encouraging use and development meets the requirements of the land use determinations for that avoids detrimental impacts on the quality and quantity of water in the catchment

None specifiedThe following application requirements apply to an application for a permit under Clause 42.01, in addition to those specified elsewhere in the scheme and must accompany an application, as appropriate, to the satisfaction of the responsible authority:

• A scaled and dimensioned site context plan showing the site and surrounding land including the location of all waterways, drainage lines, water bodies, bores, water supply channels or springs and vegetation.
• A scaled and dimensioned plan showing the location and use of existing and proposed buildings and works, including proposed or existing waste water disposal areas and vehicle access.
• Details of degree and direction of slope, soil type, vegetation and drainage systems.
• A geotechnical report and land capability assessment prepared by a suitability qualified person(s) demonstrating:
  • Details of degree and direction of slope, soil, type, vegetation and drainage systems on the site.
  • That the land is capable of absorbing effluent generated on the lot.
  • The likely impact of any on-site wastewater treatment system on surface and ground water resources and how such impact is to be mitigated.
  • A land management or environmental management plan to be implemented as part of the proposal, outlining the restoration and enhancements of land or waterways.
  • An onsite wastewater and stormwater treatment and management plan.

The following decision guidelines apply to an application for a permit under Clause 42.01, in addition to those specified in Clause 42.01 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:

• The land use determinations if any, for the respective catchment
• The proximity of the development to waterways, drainage lines and water supply reservoirs in the catchment.
• The written comments of the Department of Environment, Land, Water and Planning and Barwon Water.
• The possible impact and effect of the development on the quantity and quality of water in waterways, drainage lines, water supply reservoirs and springs.
• The need and measures to:
  • Provide buffers for or separation from waterways, drainage lines, gullies, property boundaries and any existing disposal areas or systems.
  • Minimise and reduce nutrient locads, turbidity and siltation in waterways, drainage lines and water supply reservoirs.
  • Decrease or reduce the velocity of stormwater into waterways, drainage lines and water supply reservoirs.
  • Prevent erosion of natural features, including banks, streambeds and adjoining land.
  • Improve filtration and infiltration of water.
  • Retain and increase native vegetation to prevent or limit adverse effects on waterways, drainage lines and water supply reservoirs.
  • The means of treatment and disposal of all sewage, sullage, stormwater and other wastes on site having regard to the slope, soil type and other environmental factors including the potential for pollution of waterways and ground water.

Appendix C Panel recommended version of Clause 42.03 Significant Landscape Overlay - Schedule 6

SCHEDULE 6 TO CLAUSE 42.03 SIGNIFICANT LANDSCAPE OVERLAY

Statement of nature and key elements of landscape

Vegetation is a key element of neighbourhood character in the coastal townships of Torquay and Jan Juc. The vegetation helps to screen the appearance of buildings from the street and neighbouring properties and reinforces the casual coastal character of the towns. Bellarine Yellow Gums (Eucalyptus leucoxylon subsp. bellarinensis) and Moonah (Melaleuca lanceolata subsp. lanceolata) are very important indigenous species listed under the Flora and Fauna Guarantee Act 1988 and, along with other indigenous species, are also a link to the pre-settlement landscape. Whilst indigenous species are particularly significant, all mature trees and shrubs (except for environmental weeds) play an important role in defining the coastal character of Torquay and Jan Juc and hence are to be protected.

• A moderate tree canopy supported by understorey shrubs, with emphasis on indigenous vegetation.
• An open vegetated streetscape where the vegetation acts to filter and soften the appearance of buildings and hard surface areas.

A permit is not required to construct a building or construct or carry out works.

A permit is required to remove, destroy or lop any Bellarine Yellow Gum (Eucalyptus leucoxylon subsp. bellarinensis) or Moonah (Melaleuca lanceolata subsp. lanceolata), any exotic tree greater than 5 metres in height or native vegetation greater than 3 metres in height. This does not apply:

• If the vegetation is dead.
• If the vegetation is within 2 metres of the outer edge of the roof of a building or overhangs this area.
• If the vegetation is listed as an environmental weed in the incorporated document Weeds of the Surf Coast Shire (2013).
• To the reasonable trimming of vegetation for the purpose of maintaining its on-going health and proportion within the garden landscape.

The following application requirements apply to an application for a permit under Clause 42.03, in addition to those specified elsewhere in the scheme and must accompany an application, as appropriate, to the satisfaction of the responsible authority:

An application to remove, destroy or lop vegetation must be accompanied by a report that:

• Includes a site plan (drawn to scale) showing the boundaries of the site, existing and proposed buildings and works, existing vegetation and the vegetation to be removed.
• Describes the vegetation to be removed, including the extent and type of vegetation, and the number and size of any trees to be removed.
• Specifies the purpose of the proposed removal, destruction or lopping of vegetation.
• Demonstrates that the extent of removal, destruction or lopping has been reduced as much as is reasonable and practicable.
• Where applicable, details measures to protect vegetation during construction of buildings and works and identifies on-going management requirements of vegetation post construction.
• Specifies proposals for revegetation following disturbance, including proposed species and ground stabilisation.

The following decision guidelines apply to an application for a permit under Clause 42.03, in addition to those specified in Clause 42.03 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:

• Whether the vegetation to be removed is identified in the report Bellarine Yellow Gums in the Surf Coast Shire (Mark Trengove, 2001).
• Whether the vegetation to be removed is of the species Bellarine Yellow Gum (Eucalyptus leucoxylon subsp. bellarinensis) or Moonah (Melaleuca lanceolata subsp. lanceolata).
• Whether the removal, lopping and/or destruction of Bellarine Yellow Gum (Eucalyptus leucoxylon subsp. bellarinensis) or Moonah (Melaleuca lanceolata subsp. lanceolata) can be avoided.
• Whether the removal, lopping and/or destruction of vegetation that contributes to the screening of development from property boundaries has been avoided.
• Whether replacement planting and/or the revegetation of sparsely vegetated sites with predominantly indigenous and native plants are needed to provide effective filtering of development from property boundaries.
• Whether the lopping or removal of vegetation would substantially improve the passive or active solar performance of the dwelling on the site or neighbouring property.
• The type, significance and condition of vegetation to be removed and/or retained.
• The capacity of the site to accommodate offset planting that will be able to be maintained in a healthy condition and that will positively contribute to the landscape character objectives.
• Whether protective measures are needed to prevent disturbance of vegetation associated with building construction activities.
• Any written comments from the Department of Energy, Environment Land, Water and Planning Climate Action (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987) for applications to remove, lop and/or destroy Bellarine Yellow Gum (Eucalyptus leucoxylon subsp. bellarinensis) and/or Moonah (Melaleuca lanceolata subsp. lanceolata).

Appendix D Panel recommended version of Schedule Clause 66.04 Referral of Permit Applications under Local Provisions - Schedule

SCHEDULE TO CLAUSE 66.04 REFERRAL OF PERMIT APPLICATIONS UNDER LOCAL PROVISIONS

Referral of permit applications under local provisions

Secretary to the Department of Environment, Land, Water and Planning Energy, Environment and Climate Action (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987)

Secretary to the Department of Environment, Land, Water and Planning Energy, Environment and Climate Action (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987)

All applications on sites known to contain Merran's Sun Orchid as shown on map 1 to the schedule.

All applications for native vegetation removal on sites within the Anglesea Heathland as shown on map 2 to the schedule.

Secretary to the Department of Environment, Land, Water and Planning Energy, Environment and Climate Action (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987)

Secretary to the Department of Environment, Land, Water and Planning Energy, Environment and Climate Action (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987)

Secretary to the Department of Environment, Land, Water and Planning Energy, Environment and Climate Action (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987)