Bulletin 2 August 2020
Green Wedges Coalition - a vision for Melbourne
Bulletin No 2 (August 2020)
This is an occasional publication to highlight issues of major importance to the future of the Green Wedges and is also posted on the organisation’s website at www.gwc.org.au
Lysterfield Valley Report on Proposed Subdivision and VCAT
Friends of the Glenfern Green Wedge
Our recent VCAT case concerning the Lysterfield Valley and Monbulk Creek Green Wedge illustrates many key aspects of Green Wedge policy.
In 2018, three separate owners of prime agricultural farming land in the valley combined 4 main lots (over 215 hectares in total) and came up with a plan for a ‘re-subdivision’ under Clause 35.05-3 of the VPP. Under this clause, smaller lots than the minimum requirement of 40 ha (GW6) are allowed if the re-subdivision does not increase the number of lots and also does not increase ‘the number of dwellings that the land could be used for’. This clause creates a loophole enabling the creation of more undersized lots. In our case, the owners claimed that an electricity easement (of 2 ha) and two small road reserves (each under 1 ha in size) created out of a realignment of Glenfern Rd were counted a separate lots for subdivision purposes. Thus, they claimed the 4 lots were actually 7 lots, so that in asking for 6 lots, they were decreasing the number of lots through the realignment of boundaries. We argued this was effectively an increase under Clause 35 and was inconsistent with the Green Wedge provisions.
One of the newly-proposed lots was only 4ha, which is well under the minimum size of 40ha in the GWZ6. The owners argued that the land on this 4ha lot was too steep to farm and therefore they should be exempt from the 40ha minimum and be allowed to use this for residential purposes only. The VCAT member rejected this. Also, two of the three landowners (one being the Catholic Church’s Don Bosco Retreat Centre on 96 ha) also put forward the extraordinary argument that their properties were too large to look after and they had become weed infested, so they should be allowed smaller lots, which they did not intend to farm. The third owner, who wished to purchase all the land on the site, maintained he was an experienced farmer and intended to continue farming the land. The VCAT member rejected these arguments pitting ‘good famer’ against ‘bad farmer’ and said that ‘an individual’s capacity to farm the land was not a relevant consideration’. The owners also proposed 2 very large building envelopes (of around 1 acre in size each) on prominent ridgelines, which the member determined was inappropriate given the Significant Landscape Overlay. (The valley is also listed as a Significant Landscape by the National Trust).
The VCAT member decided in our favour and the subdivision permit was refused.
The owners then put in another application in 2019, which was more consistent with the Green Wedge provisions, but still sought one under-sized lot.
However, our other main concern had always been the protection of Monbulk Creek, which runs through the middle of the property and is home to the last population of platypus in the Dandenong catchment, so we made this a focus of our objections to the new application. For years prior to the subdivision, Melbourne Water had been working very hard to convince owners to undertake management plans for the creek and keep it fenced off from cattle. Despite us putting pressure on Yarra Ranges Council and the owners, the protections for the creek remained weak and they refused to address the 30-metre buffer specified in Clause 14-.02 of the VPP or to strengthen the permit conditions to allow Melbourne Water unrestricted access. In response, we took the case to VCAT again and focussed on the protection of the creek. After much negotiation, the case was resolved prior to VCAT. We were able to achieve a much stronger conservation zone with the main section of Monbulk Creek now having a 30-metre buffer zone on its south side and Melbourne Water assured permanent access through the 173 Agreement. We believe that the issue of creek buffers is something that needs to be much more rigorously addressed by local councils and at VCAT if our creeks and rivers are to be kept in good health and able to function as healthy habitat corridors.
The other issue highlighted in this case is the legal status of lots as separately disposable units within a subdivision. The two small parcels of land (road reserves) in our VCAT case were listed with the exact same title, folio, and volume numbers as the main ‘parent’ lot. On their titles, it was stated ‘Warning: Where multiple parcels are referred to or shown on this title plan, this does not imply separately disposable parcels under Section 8A of the Sale of Land Act 1962’. The implications of this for the Lysterfield subdivision were unclear and the planning expert representing us at VCAT said it was a legal question that required a solicitor to argue if this was to be raised at VCAT. We subsequently sought seek legal advice through Environmental Justice Australia. EJA referred us to ‘Roads Corporation V Jolimont Heights and Ors [2002] VSC 500’, where Justice Balmford interpreted Section 8A as to ‘prohibit dealing in a parcel of land which is not the whole of that land in a certificate of title unless that parcel is a lot on a registered plan of subdivision’. In light of this, EJA advised that the two road reserves could not be separately disposed of. The owner could, however, apply in future to have the two lots put onto separate titles, in which case they could be sold and developed separately. Thus, these two parcels of land remain a potential threat. They could not be dealt with in our most recent VCAT case because the owners excluded them from the permit application. This serves to illustrate the lack of legal clarity around the concept of ‘lots’ and associated ‘parcels’ created through easements and other means that were never intended to create extra lots for the purposes of subdivision.
The lesson to be learned from all of this is that Clause 35.05-3, allowing a re-subdivision of an existing subdivision and the creation of smaller lots than the minimum requirement, remains a loophole in the Green Wedge planning scheme. Ideally, it needs to be re-drawn so that a realignment of boundaries and creation of smaller lots can only be applied in very limited circumstances. Otherwise, the consequences ‘on the ground’ are increased fragmentation and undersized lots in Green Wedge zones.
If you know of any similar cases involving re-subdivision of existing subdivisions, re-alignment of boundaries, or use of utility easements for subdivision purposes, could you please email me below:
Johanna Selleck (Friends of the Glenfern Green Wedge) – email: Johannas@unimelb.edu.au
State Government Review of Green Wedges Planning Policy Provisions (Update)
On Friday 31 July, Green Wedge Coalition committee and delegates were briefed by DELWP at a virtual online meeting.
Somewhat disappointedly the presentation by DELWP was very general and did not provide any detail of the structure or content of the consultation paper.
Many questions were raised by participants. One of the greatest concerns coming out of the DELWP response was their lack of understanding of the original vision for the Green Wedges with its prime focus on protecting and enhancing the natural environment, agriculture and landscape. Instead, DELWP espoused the concept of the need for a so called ‘balanced approach’ to stakeholder concerns. As pointed out by participants at the meeting, in our experience community and environment gets 5% and attention from government and development/business/economy wins out. Put another way, ‘balance’ as understood by the government is actually an imbalance that prioritizes economics and is not sustainable.
The key points in terms of the process of community consultation are:
- The consultation paper is to be released to the community on 12 August 2020.
- DELWP will be organizing a virtual workshop with the Green Wedge Coalition in September.
- The deadline for community submissions from groups and individuals is Friday 21 October 2020.
We previously circulated a draft submission our Coalition in February, prior to this review. We will be drafting a submission to the consultation paper along the lines of our February submission and will circulate that draft and/or a summary as soon as possible after 12 August.
Parliamentary Inquiry into ecosystem decline in Victoria (UPDATE)
The Green Wedges Coalition has prepared a draft submission which is attached with this Bulletin. Please utilise any content that you think appropriate for your own submissions. Local examples of ecosystem decline will be extremely important as case studies to give direct evidence of issues to the members of the Parliamentary Inquiry.
Also, any suggestions on the content of the Green Wedges Coalition submission would be most welcome.
The deadline for submissions is Monday 31 August 2020.
Please provide any feedback to Alan Thatcher at alancthatcher@gmail.com
Yarra River Strategic Plan
There is some good news regarding the Yarra River. A recent media release by the State Government has confirmed they will be making the 30-metre buffer and height restrictions mandatory and permanent along 240 km of the Yarra. This is even before the report of the panel hearings has been released. The Yarra Strategic Plan states it is intended as a model for other creeks and rivers across Victoria, which already have some protection via Clause 14 in the VPP, but making the restrictions mandatory along the Yarra provides an important precedent.
Information on the Yarra River Strategic Plan can be found here:
https://www.melbournewater.com.au/about/strategies-and-reports/developin...
